Earlier this week in Illinois, U.S. District Judge Sharon Johnson Coleman delivered a significant ruling regarding the gun rights of non-citizens who enter the United States illegally. She found that the Second Amendment to the Constitution protects these individuals' gun rights.
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Federal Law Prohibiting Non-Citizens from Possessing Firearms:
While there is a federal prohibition on illegal immigrants owning firearms, 18 U.S.C. § 922(g)(5), she ruled this prohibition unconstitutional as applied to the illegal-immigrant defendant in this case, Heriberto Carbajal-Flores. Judge Coleman's decision was based on the argument that, although the federal ban might seem constitutional on its face, there isn't a historical tradition of firearm regulation (NYSRPA v Bruen) that allows the government to prevent a non-citizen, who has no record of violent crime, from exercising their Second Amendment rights.
She wrote, The Court finds that Carbajal-Flores' criminal record, containing no improper use of a weapon, as well as the non-violent circumstances of his arrest do not support a finding that he poses a risk to public safety such that he cannot be trusted to use a weapon responsibly and should be deprived of his Second Amendment right to bear arms in self-defense…The noncitizen possession statute…violates the Second Amendment as applied to Carbajal-Flores,
The Bill of Rights and Non-Citizens:
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Here, a sign in Arizona warns of smuggling and illegal immigration. (AP FILE Photo/Gregory Bull)
The case, United States v. Carbajal-Flores is part of a broader legal discussion about how the Bill of Rights applies to non-citizens, and specifically those in the United States illegally. While most rights are clearly afforded to everyone on U.S. soil, such as the right to due process, historically, the Second Amendment right to bear arms has not.
The Supreme Court has ruled on several cases involving non-citizens and the Bill of Rights, shaping how these rights apply to non-citizens in the United States. Here are a few key rulings:
- Yamataya v. Fisher (1903): The Court held that non-citizen residents of U.S. territories were entitled to due process rights under the Fifth Amendment.
- Wong Wing v. United States (1896): The Court ruled that non-citizens, even those residing unlawfully in the United States, are entitled to due process rights under the Fifth and Sixth Amendments.
- Zadvydas v. Davis (2001): The Court held that indefinite detention of non-citizens who are subject to deportation but cannot be removed from the United States is limited by the Due Process Clause of the Fifth Amendment.
- Boumediene v. Bush (2008): The Court ruled that non-citizen detainees at Guantanamo Bay have the right to habeas corpus review to challenge their detention.
The extent to which non-citizens are protected by the rights in the Bill of Rights can vary based on the specific right and context. Generally, most rights in the Bill of Rights apply to non-citizens within the United States, but there are some exceptions or limitations. Here are a few examples:
- Second Amendment (Right to Bear Arms): The US Supreme Court has not directly ruled on this issue. And even with the Federal Court’s recent finding, there is continuing debate over whether non-citizens should have the same Second Amendment rights as citizens, especially concerning firearm ownership and possession.
- Fourth Amendment (Searches and Seizures): Non-citizens are generally protected from unreasonable searches and seizures, but there are some exceptions for border searches and searches related to immigration enforcement.
- Fifth Amendment (Due Process): Non-citizens are entitled to due process rights, including the right to a fair hearing before being deprived of life, liberty, or property. However, the level of process required may vary based on the individual's immigration status.
- Sixth Amendment (Right to Counsel): Non-citizens have a right to legal representation in criminal proceedings, but there are limitations on government-funded counsel for non-citizens in immigration proceedings.
- Seventh Amendment (Right to Jury Trial in Civil Cases): This right is generally not extended to non-citizens in civil cases.
- Eighth Amendment (Cruel and Unusual Punishment): Non-citizens are protected from cruel and unusual punishment, but there are some exceptions related to immigration detention and deportation.
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Are Illegal's Part of “We the People”?
It may seem cut and dry, but there are some other considerations to look at. John Cicchitti wrote a very detailed paper for George Mason Law Review titled: The Second Amendment and Citizenship: Why “The People” Does Not Include Noncitizens. In it Cicchitti looks at the definition of the term “the people” in the Second Amendment, and how the original writers would have meant it to mean. In the paper, Cicchitti states his conclusion this way:
The Second Amendment does not provide a right to keep and bear arms to noncitizens. From the Supreme Court’s metamorphosis of the Verdugo-Urquidez standard to its emphasis on citizenship throughout Heller, the decision offered convincing evidence that the right is limited to citizens only. The right guaranteed in the Second Amendment should be limited to members of the “political community,” as Heller mandates. Failing to exclude noncitizens may restrict legitimate legislative and executive action in dealing with noncitizens and foreign affairs. This critical question will require reasoned consideration of Supreme Court precedent, the separation of powers, and complex constitutional rights. All point toward equating “the people” of the Second Amendment with citizenship.
The Second Amendment Debate is Far From Over:
I think it's a safe bet that this is not the end of the discussion on non-citizens and the Second Amendment. This issue is not our standard, pro vs anti second amendment argument.
Essentially, the more Libertarian/conservative, pro-gun side person falls somewhere between agreeing with this decision, saying any restriction on the Second Amendment is too much, and that any “nuanced” view is a slippery slope; and recognizing some prohibiting restrictions on firearm ownership, such as convictions of violent felony, adjudicated mentally defective etc.
The progressive, anti-gun folks are also split and fall somewhere on a spectrum. On the one hand, any restriction of gun rights is a step in the right direction, because guns are bad. On the other hand, “no one is an illegal,” they are just “migrants”. And it doesn't seem consistent to give those here illegally, free healthcare, flights, housing, and public subsidies, and restrict a constitutional right. To show the break from the “no one is illegal” mantra, Yahoo's reporting on this case referred to Heriberto Carbajal-Flores as an “illegal” and not an “undocumented dreamer.”
Okay, I know you have an opinion. Let's hear it. Leave a comment below and check out the latest episode of the Concealed Carry Podcast.