Monday, December 19, 2011
Illegal Aliens and Guns
Reuters reports that the 8th Circuit Court of Appeals has ruled that illegal aliens do not have a right to bear arms under the Second Amendment. I actually think that this is the wrong decision: "right of the people" includes everyone whose rights have not been taken away by some due process action. The real problem is that if someone is illegally present in the United States, they should be arrested and deported. If they come back, send them to prison for illegal entry and failing to get the message the first time.
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I disagree. Justice Taney plausibly argues, in Dred Scott (1857), that "the people" is a constitutional term of art. It means "the citizens."
ReplyDeleteOne of Taney's arguments against citizen rights for free blacks was that blacks would have the right to keep and bear arms wherever they went. Taney regarded this as intolerable.
In McDonald v. Chicago, Justice Thomas argued that gun rights are a "privilege of citizenship" under Article 1 of the 14th Amendment. There is plenty of evidence that Thomas was correct.
Can you answer this objection?
Taney's argument falls apart because the Constitution uses both "the people" and "citizens" in different contexts. One must presume, absent other evidence, that the lawyers who wrote it intended a distinction of some sort. Everyone was a person; not everyone was a citizen.
ReplyDeleteJustice Thomas's argument is that applying the Bill of Rights (full incorporation) through the privileges or immunities clause would guarantee such rights to all citizens against the states. However, the Second Amendment's guarantee protects people from the national government. There might well be a case that the national government may not disarm aliens (even illegal aliens), but that the states may do so. However: the bigger problem is that the national government is not deporting illegal aliens. I don't much care if they are armed when they get back home.