Second Amendment Doesn't Protect Illegal Aliens:

So concludes a Magistrate Judge in the Southern District of Florida, in U.S. v. Boffil-Rivera, recommending that the District Judge reject a constitutional challenge to a federal statute that criminalizes gun possession by illegal aliens. Seems like a pretty sensible result, but what's interesting is the reasoning:

That common law right [to keep and bear arms, secured by the Second Amendment,] was held only by citizens and those who swore allegiance to the Government; it did not include everyone present on American soil.... For instance, Samuel Adams and other delegates urged the Massachusetts ratifying convention to recommend barring Congress from "prevent[ing] the people of the United States, who are peaceable citizens, from keeping their own arms." The New Hampshire convention proposed that "Congress shall never disarm any Citizen unless such as are or have been in Actual Rebellion." In these proposals, the pre-existing right clearly inured only to "peaceable" or lawful "Citizens." See also David Yassky, The Second Amendment: Structure, History, and Constitutional Change, 99 Mich. L. Rev. 588, 626--27 (2000) ("The average citizen whom the Founders wish to see armed was a man of republican virtue --- a man shaped by his myriad ties to his community, the most important for this purpose being the militia.").

Founding-era statutes confirm this limitation on the pre-existing common law right. During the American Revolution, several states passed laws providing for the confiscation of weapons owned by persons refusing to swear an oath of allegiance to the state or the United States. To deal with the potential threat coming from armed citizens who remained loyal to Great Britain, states took the obvious precaution of disarming these persons. Thus, even within the confines of the pre-existing right to keep and bear arms, certain persons --- such as those who did not swear loyalty to this country --- were seen as falling outside the protection of that right, and laws or regulations that disarmed them were well-established at the time the Second Amendment was adopted. Indeed, several Founding-era state constitutions expressly provided that the right to bear arms extended only to "citizens." See, e.g., Pa. Cons. Stat. (1790); Ky. Const. (1792); Miss. Const. (1817); Conn. Const. (1818); Me. Const. (1819).

Along these same lines, Heller concluded that the reference to "the people" in the Second Amendment "unambiguously refers to all members of the political community, not an unspecified subset." Heller grouped this reference to "the people" with others found in the Bill of Rights, specifically the First, Fourth, and Ninth Amendments, as defined by an earlier Supreme Court decision, United States v. Verdugo-Urquidez, 494 U.S. 259 (1990). In that decision, which related to the scope of the Fourth Amendment's application to the DEA's search of a foreign national that took place on foreign soil, Justice Rehnquist's majority opinion adopted the following definition of "the people":

"[T]he people" seems to have been a term of art employed in select parts of the Constitution .... [Its uses] sugges[t] that "the people" protected by the Fourth Amendment, and by the First and Second Amendments, and to whom rights and powers are reserved in the Ninth and Tenth Amendments, refers to a class of persons who are part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community.

Verdugo-Urquidez is but one example of a series of cases that recognize that foreign nationals or "aliens" are not entitled to all the rights and privileges of American citizens. Justice Jackson's "ascending scale of rights" analysis is fully applicable today:

The alien, to whom the United States has been traditionally hospitable, has been accorded a generous and ascending scale of rights as he increases his identity with our society. Mere lawful presence in the country creates an implied assurance of safe conduct and gives him certain rights; they become more extensive and secure when he makes preliminary declaration of intention to become a citizen, and they expand to those of full citizenship upon naturalization.

Johnson v. Eisentrager, 339 U.S. 763, 770-71 (1950) (emphasis added). As a result, lawful resident aliens who are present within the constitution's jurisdiction and have "developed substantial connections with this country" are entitled to minimal constitutional protections. The recognition of certain rights to resident aliens, however, does not mean that "all aliens are entitled to enjoy all the advantages of citizenship or, indeed, to the conclusion that all aliens must be placed in a single homogenous legal classification. For a host of constitutional and statutory provisions rest on the premise that a legitimate distinction between citizens and aliens may justify attributes and benefits for one class not accorded to the other; ...."

Neither foreign nationals who have not yet reached our shores, nor illegal aliens who have done so unlawfully and without the Attorney General's permission, are entitled to the full panoply of rights available to citizens or even resident aliens. To the contrary, that status by definition places such individuals outside the traditional protections of the Constitution ....

Clearly, under any historical interpretation of the enactment of the Second Amendment or the interpretation of any similar right under the Constitution, the individual right to bear arms defined by Heller does not apply to an illegal and unlawful alien. This Defendant, alleged by this Indictment to have been an unlawful alien, is not a citizen, is not ostensibly a person with identifiable and significant ties to the community, and is not someone who has any duty of allegiance to the United States. A person of his status could have been barred from possessing a firearm under English or Colonial American common law, and similarly could be precluded from doing so under the Second Amendment. His mere presence here does not entitle him to constitutional protection because he is clearly outside the scope of the "political community" who are conferred rights under the Second Amendment....

I'm inclined to be skeptical of arguments based on Revolutionary-War-era statutes — what a nation did in time of a war in which its existence is in very serious doubt doesn't tell us that much about what the general constitutional rules ought to be. But the view that "the people" wasn't understood as including illegal aliens seems to me quite plausible.

More on the implications of this decision (and of the underlying question) in posts to come. Thanks to Robert Luck for the pointer.