Posted by Eugene Volokh:
The Second Amendment and Non-Citizens:
http://volokh.com/archives/archive_2008_11_02-2008_11_08.shtml#1226080495
Federal law doesn't bar permanent resident noncitizens from getting
guns, and neither does Washington State law. But Washington law
requires that noncitizens get a special alien firearm license, and the
state Department of Licensing is [1]refusing to issue such licenses:
We are unable to issue alien firearms licenses at this time.
The Federal Bureau of Investigation (FBI) has told law enforcement
agencies it is against federal law to use federal databases for
background checks if they share the results with a non-criminal
justice agency such as the Department of Licensing. As a result:
* Law enforcement agencies cannot perform the background checks
required by state law for issuing an alien firearms licenses.
* We cannot complete the application process or issue alien
firearms licenses.
The NRA, the Second Amendment Foundation, and several permanent
residents who live in Washington are now [2]suing, claiming this
violates the Second Amendment (which they argue is incorporated
against the states via the Fourteenth Amendment) as well as the Equal
Protection Clause and 42 U.S.C. � 1981. For more on the general legal
theories involved, see [3]this post of mine from three months ago. For
more on the litigation, see [4]this Seattle Post-Intelligencer
article. Note that the Washington Constitution's right to bear arms is
of no help to noncitizens, because -- unlike [5]some other state
constitutions (e.g., [6]Nebraska's) -- the Washington Constitution
secures the right only to each "individual citizen."
By the way, here's the [7]42 U.S.C. � 1981 theory, which my earlier
post didn't discuss:
1. This statute -- enacted shortly after the Civil War -- provides
(emphasis added), "All persons within the jurisdiction of the United
States shall have the same right in every State and Territory to make
and enforce contracts, to sue, be parties, give evidence, and to the
full and equal benefit of all laws and proceedings for the security of
persons and property as is enjoyed by white citizens, and shall be
subject to like punishment, pains, penalties, taxes, licenses, and
exactions of every kind, and to no other."
2. This doesn't just bar race discrimination, but also discrimination
against noncitizens (as to the subjects involved).
3. The state constitutional provision securing a right to bear arms,
and state laws related to concealed carry licenses, are "laws ... for
the security of persons and property."
4. Therefore, discrimination against "lawfully admitted resident
aliens" violates � 1981.
Note: Though the logic of this statutory argument might extend beyond
lawfully admitted resident aliens, federal gun statutes generally bar
gun possession by illegal aliens and by most aliens who have
nonimmigrant visas. These statutes likely implicitly limit � 1981 as
to those kinds of aliens. And even if � 1981 continues to preempt
state laws limiting ownership by such non-lawful-immigrant
noncitizens, federal law would make such ownership illegal and thus
make the state law question largely moot.
References
1. http://www.dol.wa.gov/business/firearms/faalien.html
2. http://volokh.com/files/nrawashington.pdf
3. http://volokh.com/posts/1218687757.shtml
4. http://seattlepi.nwsource.com/local/386392_guns05.html
5. http://www.trolp.org/main_pgs/issues/v11n1/Volokh.pdf
6. http://www.law.ucla.edu/volokh/omaha.htm
7. http://www4.law.cornell.edu/uscode/42/1981.html
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