Posted by Eugene Volokh: The Second Amendment and Non-Citizens: http://volokh.com/archives/archive_2008_08_10-2008_08_16.shtml#1218687757
The Second Amendment / illegal alien decision discussed in [1]the post below reminds me of a broader question -- do noncitizens who are legally present in the U.S. have Second Amendment rights? 1. Federal law generally bars gun possession by noncitizens who are here under a nonimmigrant visa. Some state laws go further and ban all possession by noncitizens, including by permanent residents. The law of Guam likewise bans all possession by noncitizens, and because federal statutes extend the Bill of Rights to Guam, the Guam law could be challenged even without reaching the question whether the Second Amendment is incorporated against the states. Generally speaking most constitutional rights have been extended (at least where criminal punishment, as opposed to the threat of deportation, is involved) to legal aliens. Should this apply to the Second Amendment? The reasoning in the [2]illegal alien opinion seems to potentially apply to legal aliens as well, though that's not clear. 2. Also, what about the Court's doctrine that state and local laws (as opposed to federal law) discriminating based on citizenship are subject to strict scrutiny? There's an exception for discrimination that denies aliens access to "political functions" that are "intimately related to the process of democratic self-government" (such as voting or jury service, or hiring of police officers, probation officers, or public school teachers), but given the Court's self-defense-rights reasoning in Heller, that likely doesn't apply here. A few state courts have considered this argument, and have split on it. See generally [3]Pratheepan Gulasekaram, Aliens With Guns: Equal Protection, Federal Power, and the Second Amendment, 92 Iowa L. Rev. 891 (2007). 3. Note also that some [4]state constitutions secure a right to keep and bear arms to all persons, while others speak of "people" and still others speak specifically of "citizens." There might thus be a right to bear arms under at least some such state constitutions, as I argued in [5]this op-ed that criticized an Omaha ban on handgun possession by noncitizens (including perfectly legal residents) -- the Nebraska Constitution provides that "All persons have certain inherent and inalienable rights," including "the right to keep and bear arms for security or defense of self, family, home, and others, and for lawful common defense, hunting, recreational use, and all other lawful purposes." References 1. http://volokh.com/archives/archive_2008_08_10-2008_08_16.shtml#1218685192 2. http://volokh.com/archives/archive_2008_08_10-2008_08_16.shtml#1218685192 3. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=924396 4. http://www.trolp.org/main_pgs/issues/v11n1/Volokh.pdf 5. http://www.law.ucla.edu/volokh/omaha.htm _______________________________________________ Volokh mailing list [email protected] http://lists.powerblogs.com/cgi-bin/mailman/listinfo/volokh
