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Old November 2, 2017, 08:08 AM   #1
Onward Allusion
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BATFE, Non-Citizens, Guns, & Gun Control

QUESTION:
- Can the ATF prevent non-citizens from completing Form 4473 by a simple change of the form and regulation?

COMMENT:
- If I were on the other side, I'd push for legislation that prevents non-citizens from acquiring ANY firearms. In our current sociopolitical environment, this would have a strong likelihood to pass, IMO.
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Old November 2, 2017, 09:08 AM   #2
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I'm not sure that you mean the first question literally. If an immigrant completes the form truthfully, why try to prevent him from completing it.

Quote:
In our current sociopolitical environment, this would have a strong likelihood to pass, IMO.
I don't agree. The same legislative votes for more gun regs are also the same votes against tighter immigration regs. Yes, the restriction you suggest would not be an immigration restriction, but that's the kind of detail that is bound to be lost in the cross current of accusations.
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Old November 2, 2017, 09:11 AM   #3
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Nope, not a chance. Everyone is entitled to equal protection of the law according to the 14th amendment.

Non permanent aliens are currently prohibited with a few exceptions. If they meet one of the exceptions, they can pass a background check. I imagine that could be changed, but I think it would still require an act of congress. Being such a person myself, and qualifying for one of those exceptions, I hope it doesn't change since I would have to get rid of my guns.
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Old November 2, 2017, 12:06 PM   #4
Onward Allusion
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I thought the 14th was only applicable to citizens? Not referring to Due Process. My question relates to non-citizens and gun ownership.
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Last edited by Onward Allusion; November 2, 2017 at 12:25 PM.
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Old November 2, 2017, 01:05 PM   #5
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I think a legal resident, whether a citizen or not, should have the same ability to protect himself/herself as anyone else. Those who can't pass a background check shouldn't be here to begin with. There are more than enough restrictive gun laws on the books. Law abiding folks with guns are not the problem.
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Old November 2, 2017, 01:14 PM   #6
ShootistPRS
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In the united States each individual has all the rights that a citizen has except for the right to vote.
Our rights are basic, fundamental rights that are endowed by our birth as human beings, therefore they pertain to each individual in the united states and its legal territories.
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Old November 2, 2017, 03:51 PM   #7
Frank Ettin
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Quote:
Originally Posted by K_Mac
I think a legal resident, whether a citizen or not, should have the same ability to protect himself/herself as anyone else.....
Quote:
Originally Posted by ShootistPRS
In the united States each individual has all the rights that a citizen has except for the right to vote....
Such philosophical views are irrelevant to the question of what the law is. What matters is what the statutes and courts say.

In the real world, under federal law, and with a few very narrow exceptions, a foreign national present in this country on a nonimmigrant visa may not lawfully have physical or constructive possession of a gun or ammunition (18 USC 922(g)(5)).

Recently the Seventh Circuit found in United States v. Meza-Rodriguez, 7th Circuit, No. 14-3271, 2015. that --
  1. The rights protected by the Second Amendment extend to non-resident aliens, whether documented or undocumented; and

  2. 18 USC 922(g)(5) applied in the case of an undocumented alien is not unconstitutional. The application of 18 USC 922(g)(5) to documented, non-resident aliens was not an issue in the case and not considered.

A quick search did not find a case addressing the application of 18 USC 922(g)(5) to documented, non-resident aliens, so that remains an open question.
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Old November 2, 2017, 11:43 PM   #8
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Frank, that seems like a contradiction. They said the 2A extends even to the undocumented, but the law prohibiting those here on visas is constitutional?
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Old November 3, 2017, 12:39 AM   #9
Frank Ettin
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Quote:
Originally Posted by SonOfScubaDiver
... that seems like a contradiction. They said the 2A extends even to the undocumented, but the law prohibiting those here on visas is constitutional?
One need to read and understand the opinion and this cases dealing with these issues.

Let's look at United States v. Meza-Rodriguez, 7th Circuit, No. 14-3271, 2015.

First, there nothing really new here. There are other cases in which courts have concluded that even illegal aliens can, under some circumstances, be entitled to the protections of the Bill of Rights. And there have been other court decisions which have upheld various of the factors enumerated in 18 USC 922(g) disqualifying one from possessing a gun or ammunition.

Background

As the 7th Circuit in its opinion outlined the background of the case (slip op., at 1 -- 2):
Quote:
When Mariano Meza-Rodriguez, a citizen of Mexico, was arrested in August 2013, he was carrying a .22 caliber cartridge. But it was what he did not have— documentation showing that he is lawfully in the United States—that concerns us now. His immigration status made his possession of the cartridge a crime under 18 U.S.C. § 922(g)(5), which prohibits foreigners who are not entitled to be in the United States (whom we will call “unauthorized aliens”) from possessing firearms. Meza-Rodriguez moved to dismiss the indictment that followed, arguing that § 922(g)(5) impermissibly infringed on his rights under the Second Amendment to the Constitution. The district court denied his motion on the broad ground that the Second Amendment does not protect unauthorized aliens. That rationale swept too far, and we do not endorse it. The court’s judgment, however, was correct for a different reason: the Second Amendment does not preclude certain restrictions on the right to bear arms, including the one imposed by§ 922(g)(5)....
Questions on Appeal

Meza-Rodriguez' appeal of the District Court's refusal to dismiss his indictment potentially raises two questions: (1) do the rights protected by the Second Amendment extend to unauthorized aliens (using the terminology of the Circuit Court); and (2) if so, is prohibiting unauthorized aliens from possessing a gun or ammunition a constitutionally impermissible regulation of the rights protected by the Second Amendment?

To respond to and rule on Meza-Rodriguez' appeal, the Circuit Court needed to address both those questions.

Do the Rights Protected by the Second Amendment Extend to Unauthorized Aliens?

The Circuit Court did not comprehensively answer that question. Rather it concluded that the rights protected by the Second Amendment extended to Meza-Rodriguez, and unauthorized aliens similarly situated. To reach that conclusion, the Circuit Court looked at other cases extending under some circumstances certain rights enumerated in the Bill of Rights to unauthorized aliens.

As the 7th Circuit noted (Meza-Rodriguez, slip op. at 9 -- 10, emphasis added):
Quote:
...The conclusion that the term “the people” in the Second Amendment has the same meaning as it carries in other parts of the Bill of Rights is just the first step in our analysis. We still must decide what it means. The Supreme Court has spoken on this issue, albeit obliquely. In Verdugo-Urquidez, the Court determined that the Fourth Amendment did not protect a noncitizen brought involuntarily to the United States against a warrantless search of his foreign residence. See Verdugo-Urquidez, 494 U.S. at 274–75. In rejecting Verdugo-Urquidez’s position, the Court stated 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.” Id. at 265. Of interest here, the Court also said that “aliens receive constitutional protections when they have come within the territory of the United States and developed substantial connections with this country.” Id. at 271. ...
And with regard to Meza-Rodriguez' ties to the United States, the 7th Circuit notes (Meza-Rodriguez,slip op at 11):
Quote:
...see first that Meza-Rodriguez was in the United States voluntarily; there is no debate on this point. He still has extensive ties with this country, having resided here from the time he arrived over 20 years ago at the age of four or five until his removal. He attended public schools in Milwaukee, developed close relationships with family members and other acquaintances, and worked (though sporadically) at various locations. This is much more than the connections our sister circuits have found to be adequate.....
Thus the rights protected by the Second Amendment extend to Meza-Rodriguez.

Is Prohibiting Unauthorized Aliens from Possessing a Gun or Ammunition a Constitutionally Impermissible Regulation of the Rights Protected by the Second Amendment?

And with regard to that question, the 7th Circuit concluded the disqualifying unauthorized aliens from possessing a gun or ammunition was a permissible regulation.

In sustaining the application of 18 USC 922(g)(5), the 7th Circuit found (slip op., at 15):
Quote:
...Congress’s objective in passing § 922(g) was “to keep guns out of the hands of presumptively risky people” and to “suppress[] armed violence.” Yancey, 621 F.3d at 683–84 (citing S. REP. NO. 90-1501, at 22 (1968)); see also Huitron-Guizar, 678 F.3d at 1169–70 (§ 922(g)’s purposes are to assist law enforcement in combating crime and to keep weapons away from those deemed dangerous or irresponsible). One such group includes aliens “who … [are] illegally or unlawfully in the United States.” 18 U.S.C. § 922(g)(5)(A). The government argues that the ban on the possession of firearms by this group of people is substantially related to the statute’s general objectives because such persons are able purposefully to evade detection by law enforcement. We agree with this position: unauthorized noncitizens often live “largely outside the formal system of registration, employment, and identification, [and] are harder to trace and more likely to assume a false identity.” Huitron-Guizar, 678 F.3d at 1170. Persons with a strong incentive to use false identification papers will be more difficult to keep tabs on than the general population. (Section 922(g)(5)(B)’s prohibition on firearms possession by most aliens who are lawfully present but who hold only nonimmigrant visas reflects a similar concern....
Discussion

Basically, the 7th Circuit could not resolve this case by refusing to extend the rights protected by the Second Amendment to unauthorized aliens. Were it to do so, it would have undercut existing and important legal principles extending certain fundamental, personal rights to persons who , "...have come within the territory of the United States and developed substantial connections with this country...."

However, several of the conditions listed in 18 USC 922(g) disqualifying one from possessing a gun or ammunition have been sustained at the Circuit Court level.

If this case were to go up to the Supreme Court the arguments would focus on the disqualifying condition and whether it passes the applicable level of scrutiny.
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Old November 3, 2017, 04:34 AM   #10
publius42
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Are illegal immigrants "the people" referenced in the Constitution?
https://thinkprogress.org/gun-rights...-a25692714603/
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Old November 3, 2017, 09:54 AM   #11
carguychris
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Quote:
Originally Posted by Onward Allusion
Can the ATF prevent non-citizens from completing Form 4473 by a simple change of the form and regulation?
Just to be clear: Are you talking about modifying question 12.a as a form of backdoor gun control?

If so, I believe the answer to your question would be no. Form 4473 cannot be modified nor the underlying regulations changed without a formal review process and a comment period. The law does not prohibit an immigrant alien from possessing firearms and Form 4473 reflects this.

I'm aware that the previous administration achieved some notoriety for changing regulations WITHOUT the formal review process and comment period, but people can (and did) sue to stop these changes from taking effect, and it's easier to demonstrate in court that someone has suffered specific harm from having their 2A rights taken away than it is to demonstrate such harm from the Obama administration's actions on DACA and so forth. This should make it easier to establish a plaintiff's standing and justify an injunction against the regulations.

[EDIT] Footnote: Just to be clear myself, by using the term "immigrant alien," I am referring to a lawful permanent resident – someone with a green card.
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Last edited by carguychris; November 3, 2017 at 10:16 AM. Reason: edited out part about nationals (checked definition)
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Old November 3, 2017, 11:17 AM   #12
brian33x51
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My wife is a legal resident. I would like for her to be able to carry. I think at some point soon she'll knuckle down and apply for citizenship, we just have this issue of her still owning property in that other country.
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Old November 3, 2017, 11:44 AM   #13
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Quote:
My wife is a legal resident. I would like for her to be able to carry. I think at some point soon she'll knuckle down and apply for citizenship, we just have this issue of her still owning property in that other country.
Perhaps "selling" you the property would solve the property issue.
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Old November 3, 2017, 12:25 PM   #14
Onward Allusion
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Quote:
Just to be clear: Are you talking about modifying question 12.a as a form of backdoor gun control?

If so, I believe the answer to your question would be no. Form 4473 cannot be modified nor the underlying regulations changed without a formal review process and a comment period. The law does not prohibit an immigrant alien from possessing firearms and Form 4473 reflects this.

I'm aware that the previous administration achieved some notoriety for changing regulations WITHOUT the formal review process and comment period, but people can (and did) sue to stop these changes from taking effect, and it's easier to demonstrate in court that someone has suffered specific harm from having their 2A rights taken away than it is to demonstrate such harm from the Obama administration's actions on DACA and so forth. This should make it easier to establish a plaintiff's standing and justify an injunction against the regulations.

[EDIT] Footnote: Just to be clear myself, by using the term "immigrant alien," I am referring to a lawful permanent resident – someone with a green card.
Yes. That is EXACTLY what I was asking about - backdoor gun control. . . . AND yes, I was referring to green card folks.

I am not sure I would agree that it would be difficult to do, however. I'm fairly certain that a portion of gun owners/supporters would not put up a big stink over it. Not to mention the antis who would jump on the wagon.
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Old November 3, 2017, 12:27 PM   #15
divil
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Quote:
My wife is a legal resident. I would like for her to be able to carry. I think at some point soon she'll knuckle down and apply for citizenship, we just have this issue of her still owning property in that other country.
Assuming you live in Colorado based on your signature - you know there's nothing stopping her from carrying now, right?

https://www.denvergov.org/content/da...6-Revision.pdf
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Old November 3, 2017, 12:33 PM   #16
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Thanks, Frank. So, basically, what the courts are saying is that 2A rights apply to the undocumented fella because he established a life for himself here, while people who are just visiting haven't done that.
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Old November 3, 2017, 01:08 PM   #17
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Quote:
Originally Posted by carguychris
I'm aware that the previous administration achieved some notoriety for changing regulations WITHOUT the formal review process and comment period, but people can (and did) sue to stop these changes from taking effect, and it's easier to demonstrate in court that someone has suffered specific harm from having their 2A rights taken away than it is to demonstrate such harm from the Obama administration's actions on DACA and so forth. This should make it easier to establish a plaintiff's standing and justify an injunction against the regulations.
Quote:
Originally Posted by Onward Allusion
I am not sure I would agree that it would be difficult to do, however. I'm fairly certain that a portion of gun owners/supporters would not put up a big stink over it. Not to mention the antis who would jump on the wagon.
Here's the key: It's MUCH easier to make the case that the government has specifically screwed YOU over by taking away your Constitutional right to [fill in the blank], than it is to demonstrate that the government has directly harmed you by not deporting certain undocumented immigrant children, or by enforcing environmental regulations in a very aggressive and legally questionable way.

The court case discussed by Frank Ettin is germane because it specifically says that 2A rights broadly apply to immigrants, although those rights may be restricted for certain specific and narrowly-tailored purposes. The court used reasoning consistent with other decisions upholding the application of other BoR protections to immigrants.

I guarantee you that there are MANY immigrant aliens who would raise a BIG stink over such an attempt—e.g. handgun licenses are VERY popular with the Sikh community in my area, as a modern-day substitute for that religion's duty to carry swords. Given that many folks on the left are broadly pro-immigrant, I DON'T believe it's a foregone conclusion that they would jump on the wagon.
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Old November 3, 2017, 05:27 PM   #18
Frank Ettin
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Quote:
Originally Posted by SonOfScubaDiver
Thanks, Frank. So, basically, what the courts are saying is that 2A rights apply to the undocumented fella because he established a life for himself here, while people who are just visiting haven't done that.
No, the court of appeals is saying two things:
  1. Certain enumerated rights apply to undocumented aliens.

  2. Prohibiting possession of guns or ammunition to undocumented aliens is a permissible regulation of the rights protected by the Second Amendment.

Note that limited regulations of constitutionally protected rights have been found by the courts to be permissible under some circumstances.
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Old November 3, 2017, 09:07 PM   #19
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Quote:
Originally Posted by FrankE
Prohibiting possession of guns or ammunition to undocumented aliens is a permissible regulation
I'm glad someone finally cut to the chase.
I was getting real dizzy watching the tennis ball.
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