ACLU finally takes a firearms case

[jimpeel]

Probably not what you would think, though. It seems that the law in SD has been changed to disallow legal resident aliens from CCW. The plaintiff in the case is a Brit citizen who has lived in the U.S. as a legal resident alien for upwards of twenty years. He has had a CCW for much of that time but the new law now disallows him from renewing his permit.

The proponents say that if you are in this country legally, you should be afforded all of the rights of a citizen other than voting, etc.

Opponents say that this is a backdoor attempt to allow illegal aliens to keep and carry firearms.

Even the pro-firearms groups quoted in the story, NRA and GOA, are at odds.

For my part, I believe he should be able to keep and carry firearms as long as he remains a legal resident alien.

Here is the story. You decide. I threw in a poll (good for only ten days) just for fun.

SOURCE

In what might appear to be a shotgun wedding of opposites, the ACLU has filed a lawsuit on behalf of a non-U.S. citizen alleging that South Dakota's concealed weapons law violates his constitutional right to bear arms.

Read more: http://www.foxnews.com/us/2011/01/06...#ixzz1AKZpVqv1

[more]

[WeedWacker]

I'm wondering how the second can be interpreted here. It refers to the Militia (private citizens) being the armed force necessary for a secure and free State. But as a resident alien, does this qualify him as a member of the militia as he is not a full citizen of the United States? I really have nothing against him owning a firearm, I believe all free men should. I just don't see it as he doesn't meet the criteria per the second and the definition of militia. Or am I thinking too much again?

[Aguila Blanca]

Originally Posted by WeedWacker

I really have nothing against him owning a firearm, I believe all free men should. I just don't see it as he doesn't meet the criteria per the second and the definition of militia. Or am I thinking too much again?

Even if you didn't understand the 2nd Amendment (which it appears you don't), a read of the decisions in Heller and (especially) McDonald makes it crystal clear that the RKBA protected by the 2nd Amendment is in no way predicated on service in a militia, or on anything else. It also imposes no requirement to be a citizen.

To say that a legal resident alien has no 2A right to keep and bear arms is equivalent to saying that he also has no 1A right to freedom of speech, no 4A right to security against warrantless and baseless searches and seizures, and no 5A protection against being required to make self-incriminating statements.

That dawg don't hunt.

[Bartholomew Roberts]

Opponents say that this is a backdoor attempt to allow illegal aliens to keep and carry firearms.

Actually, Larry Pratt said that. I didn't see anybody else making that allegation in the article. The one scholar mentioned that he thought the same distinctions that had been made with denying illegal immigrants 4th Amendment and 2nd Amendment rights should also apply to legal resident aliens but Pratt was the only one suggesting that this would benefit illegal aliens.

Although, I'd be surprised if illegal aliens decided to submit themselves to a criminal background check and closer law enforcement scrutiny. The first thought that pops into my head is that someone who is in the country illegally to begin with probably isn't real concerned with whether their use of firearms is legal.

[Al Norris]

Since the Court in McDonald failed to incorporate via the PorI clause, the alienage aspect of the 14th does not come into play. The case is an Equal Protection Clause case and therefore affects all persons under US jurisdiction. Not just citizens.

When SD changed their law last year, this was an easy outcome to foresee.

The complaint is attached.

[DogoDon]

I guess it comes down to who "the people" are, doesn't it? The right of "the people" to keep and bear arms shall not be infringed. Would the Framers have considered non-citizens to be included in "the people"?

Personally I'm inclined to think that the 2A is in a different category from the 1st, 4th, and 5th Amendments and thus could be treated differently as regards applicability to non-citizens. But I admit I cannot articulate a particularly rational explanation of why I feel that way.

DD

[Al Norris]

Under the 14th amendment, there are 3 means of protection for rights: The Privileges or Immunities clause protects citizens of the united states. The Due Process and Equal Protection clauses protect any person.

The Supreme Court eviscerated the PorI clause with the Slaughterhouse Cases. This left only the DP and EP clauses as a means to protect the fundamental rights of all persons, not just citizens.

This is the game that the SCOTUS has left us with. Like it or not, it is the only way the Courts have allowed.

[DogoDon]

You're right, Al. So this seems like a slam dunk for the ACLU, don't you think?

DD

[tet4]

It's a slam dunk, and I'd like to know what 2a organizations are arguing that he does not have the right to self defense.

Our NATURAL right to self defense (and subsequently, our right to keep and bear the tools to do it) is not granted to anyone via the 2A. It is pre-existent, whether you are a citizen or alien. If a pro-2a organization does not understand that, they have some serious issues.

This is a perfect illustration of the infringement of our rights by a government body, and why CCW schemes (even shall-issue) are very dangerous as they condition us to think that we must ask permission to exercise a natural right.

[GoOfY-FoOt]

Put yourself, in their shoes.

Say you had a job that sent you to another country, for some considerable time.
Wouldn't you feel the need to be able to defend yourself? Assuming it was the norm, for citizens of said country?
What if you were given that right, but then had it taken away?
How would you feel?

[zxcvbob]

AB got it exactly right in post #3. (IANAL, and all that)

[MadHatter1]

Like most here, I agree that being a legal resident alien should not preculed the right of SD.
Where my opinion may vary is that this man should not have been allowed to be a resident alien for 20+ years. He's eligiable ffor naturalization after 5 years. By year 10, its time to make a decision. You're enjoying the freedoms and benfiits of this country (as well as economic opprotunity), year after year. Time to poo or get off the pot.

[vranasaurus]

United States v. Verdugo-Urquidez, 494 US 259 is instructive.


While this textual exegesis is by no means conclusive, it suggests 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. See United States ex rel. Turner v. Williams, 194 U. S. 279, 292 (1904) (Excludable alien is not entitled to First Amendment rights, because "[h]e does not become one of the people to whom these things are secured by our Constitution by an attempt to enter forbidden by law"). The language of these Amendments contrasts with the words 266*266 "person" and "accused" used in the Fifth and Sixth Amendments regulating procedure in criminal cases.

Legal resident aliens would be part of "the people" especially those who have been here for 30 years.

[armoredman]

Yes, legal residents should have the same rights. Illegals, who are certainly not "part of the national community", should not have the same rights as others due to their criminal behavior. But all legal resident aliens shouldn't have to jump through any additional hoops. Getting a CCW should earn them points on that final exam for citizenship.

[Tom Servo]

Al is correct. The Supreme Court used the Due Process clause to incorporate the 2nd Amendment, which reads:

nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Any person, not any citizen.

If one is a resident alien, that means they're here legally, and they're on the radar, same as any of us. I find GOA's position very disingenuous.

[44 AMP]

Illegals cannot. To me, that makes it a slam dunk. There could be a few extra paperwork hoops to jump through (as there are for buying the gun), but thats all there should be.

Although we include CCW in our view of our right of personal defense, the simple fact that in places where a permit is required, it is a privilege, not a right. The recent Heller decision allows for "reasonable" regulations.

No one is denying this gentleman his fundamental human right to self defense. No one is denying him a firearm in his home. No one is denying him open carry (if/where legal). What they are denying him is the privilege of legally carrying concealed.

At the risk of swimming against the tide, I feel it is full within the state's authority and responsibility to do so. If that is the law, as written, then that is what they should do. It is a sad thing that this guy is apparently caught in the legal entanglement of the change in the law, but that happens. The law apparently used to allow him a permit, and now does not. HE has perfect legal grounds to sue, as a directly affected person.

Acording to the published comments in the link, the writers of the law intended to keep guns from the hands of illegals, but worded it in such a way that legals are covered as well.

Perhaps that is just what they meant. Legal aliens are not immune to fanantics and wackjobs any more than the rest of us. Some of the terrorists entered the US on legal visas, and stayed for some time, before commiting their violence. Prohibiting legal aliens ccw permits, based on that example does not seem unreasonable.

However, the state had been issuing this man a permit, so they should continue to do so. Absent criminal behavior, if he was trustworthy enough then, he is still. A small grammatical change in the law (which the legislature could easily do) could render his case moot.

I wonder if there is any connection with another case I heard about a few weeks back. Seems there is a British couple, living in the Dakotas (IIRC) been here for decades, being denied visa renewal. They run a small diner, employ 1-2 people part time, and are apparently not in debt. According to the all inclusive 5 minute newscast I heard, the reason the couple is being denied their visa is because some bureaucrat in govt has determined that their business doesn't make enough money!

Its enough to make a statue weep!

[Wildalaska]

SWMBOinAlaska is a legal alien, anyone care to explain to me why she shouldnt be allowed to carry a gun if she wants.

WildidbehappytodebateAlaska ™©2002-2011

[jimpeel]

A video report/discussion on this story.

http://video.foxnews.com/v/4489305/a...ylist_id=87937

[Al Norris]

Slam-dunk for the ACLU? Playing devils advocate, I believe the State will win. In General:

-----
"Putting all of these textual elements together, we find that they guarantee the individual right to possess and carry weapons in case of confrontation." Heller, 128 S. Ct. at 2797 (emphasis added)

The Court also cited several Nineteenth Century authorities that upheld bans on the concealed (vis-à-vis exposed) carry of handguns to show the historical understanding of “keep and bear Arms.” Again, the Court’s rationale presupposes the existence of a general right to carry handguns. The Court explained:

"the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues."

Heller, 128 S. Ct. at 2816. The Court supported this statement with citations to four Nineteenth Century authorities – all of which had reasoned that concealed carry might be banned if people were still allowed to carry guns openly.
-----

I'll give you 5: See Aymette v. State, 21 Tenn. 154 (1840); State v. Reid, 1 Ala. 612 (1840); Nunn v. State, 1 Ga. 243, 251 (1846); State v. Chandler, 5 La. Ann. 489, 489-490 (1850); Andrews v. State, 50 Tenn. 165 (1871).

Note: the above taken directly from the Muller v. Maenz (NJ) brief in support of plaintiffs' Motion for Summary Judgment.

Now, for the all the money: South Dakota is an open carry State.

The plaintiff can carry openly. He is not barred from carry at all. The concealed carry requirement that one be a citizen of the U.S. is reasonable. Case closed.

[Tom Servo]

Now, for the all the money: South Dakota is an open carry State.

The plaintiff can carry openly. He is not barred from carry at all. The concealed carry requirement that one be a citizen of the U.S. is reasonable. Case closed.

I'm not so sure. The Schultz decision in Wisconsin dismantled that argument:

Open carry or display could result in the gun owner violating other laws regarding access of minors to guns or result in overzealous police and/or prosecutors charging disorderly conduct under sec. 947.01, Wis. Stats., for (what this court considers) the lawful open carrying and display of handguns. The argument that this will not happen with reasonable prosecutors has already been proven wrong. (…) five men were issued disorderly conduct citations for eating at a Culver’s restaurant while having firearms in holsters in plain view. The Hamdan court, apparently, was prophetic on this issue. [p. 4]

In that case, the court found that a total ban on concealed carry was not the "least restrictive" way for the government to achieve its purported public safety aims.

Then again, Wisconsin and Jersey are two very different places.

[WeedWacker]

Even if you didn't understand the 2nd Amendment (which it appears you don't), a read of the decisions in Heller and (especially) McDonald makes it crystal clear that the RKBA protected by the 2nd Amendment is in no way predicated on service in a militia, or on anything else. It also imposes no requirement to be a citizen.

No, I never said "participate in a militia" I said the definition of a militia being that of able bodied men between 17 and 45 "who are, or who have made a declaration of intention to become, citizens of the United States and of female citizens of the United States who are members of the National Guard."

Quotes from: http://www.law.cornell.edu/uscode/us...1----000-.html

Hence my questioning whether this man falls under the qualifications to be the unorganized militia (standard civilian) since he, as far as I know, has made no "declaration of intention to become" a citizen. He is a resident alien and I think the law as it stands would exclude such a person. Then again we give Miranda rights to known terrorists and enemy combatants now.

But in my own honest opinion I don't see why the guy shouldn't be allowed the means to defend himself. I'm just saying the law seems slightly exclusionary in this regard as it stands.

ETA: "The right of the people to keep and bear arms, shall no be infringed"

From the Heller interpretation this means that firearms will not be denied to the people of the United States. CCW is another matter. I'm all for "constitutional carry" but it's not going to happen any time soon. Without the legislation at this point the man may be excluded from our right to bear arms in a concealed fashion.

[MLeake]

.... I have to wonder if the change for legal resident aliens was consciously noted by most of those who voted for it. Call me cynical, but I suspect a lot of people were thinking in terms of illegal aliens.

I've got legal resident friends, and can think of no reason why I'd deny them a permit.

Wonder what was the rationale of the people who drafted this?

[alan]

Re the complaining party, a foreign national, who has been legally resident in this countrry for "20 Years", holder of a "Green Card "one assumes, how come this person had not become a U.S. Citizen, a question that leaves me curious, especially given, correct me if I'm wrong, that "dual citizenship" is allowed between the U.S. and GB

[MLeake]

... but in the cases of resident aliens I know, they are married to US citizens, and choose to reside here, but they do not want to change their own citizenship.

They still have to pay taxes, etc. I have no issue with it.

[BikerRN]

Irrespective of court rulings and law, I am of the personal opinion that the right to keep and bear arms, as well as any and all protections provided under the Constitution should be reserved for citizens only.

That's my personal opinion, and not likely to change anytime soon.

Biker