Question of the Day: Do Illegal Immigrants Have Gun Rights?

The Second Amendment Foundation has secured a preliminary injunction against the City of Omaha, NE. For the time being, the city cannot prevent legal non-citizens from registering handguns in the city. But wait! What’s this? “The city is currently reviewing its ordinance with an eye on amending it to allow legal immigrants to register handguns,” the SAF’s press release reveals. “The proposed changes have the support of Omaha Police Chief Alex Hayes, who was named as a defendant in the lawsuit, along with Mayor Jim Suttle and the city.” So legal resident aliens will join American citizens and enjoy (or not) Second Amendment protections. But what about illegal immigrants? Don’t they have gun rights too?

comments

  1. avatar Jacob says:

    Am I missing something here? How can a non resident of the United States register a firearm in the US?

    1. avatar Nick Leghorn says:

      Watch for an article on that very question around 10 AM.

    2. avatar Ralph says:

      How can a non resident of the United States register a firearm in the US?

      The plaintiffs in the case are legal permanent resident non-citizens. They aren’t non-residents.

      1. avatar Jacob says:

        Crap, I used the incorrect term. Forgive me, it’s late over here..

    3. avatar ExurbanKevin says:

      With a driver’s license or CCW permit, a 4473 and 90 day’s worth of utility bills to prove residency.

      Heck, I can even get NFA stuff if I want.

  2. avatar HAVE GUN says:

    Don’t illegals have the right to remain silent when arrested? How about free speech? Right to due process? etc.

    So of all rights, we just take away the 2nd, leaving said person ripe for victime of crime?

    1. avatar Jeff says:

      Not to be a stickler, but non-citizens don’t have the benefit of privileges and immunities or the right to vote. As a matter of law, they likely do have protection under the 2nd Amendment because McDonald “incorporated” the right to keep and bear arms into the 14th Amendment’s due process clause and that clause’s protections apply to non-citizens, legal or not.

      1. avatar HSR47 says:

        Perhaps, but by nature of their illegal entry into this country, their continued residency is criminal, and it is illegal to use firearms in the commission of a crime. Ergo, those who are illegally in this country do not have exercisable rights under the second amendment. Q.E.D.

        1. avatar Jeff says:

          “Perhaps, but by nature of their illegal entry into this country, their continued residency is criminal, and it is illegal to use firearms in the commission of a crime.”

          Nope. Most of the time “illegally” entering the country isn’t a crime. In fact, under federal law it’s only a crime if you illegally enter, are caught and sign a form acknowledging that you have been banned for X period of time, and you attempt to re-enter.

          Also, when dealing with “in the furtherance of a crime” statutes, you need to consider what the crime is and how strong the relationship to the crime the gun has. E.g. gun used to rob bank, sure, you’re golden. CCW permit holder speeding 3 MPH over the limit, not quite a gun crime.

        2. avatar Gabba says:

          by that rationale carrying a gun while jaywalking or littering should get you thrown in prison. and illegal immigration is a civil offence not a criminal one, if it was there would need to be a trial, and then it would be open to jury nullification. i could go on.

  3. avatar Mike says:

    This seems wrong. Become a citizen of the United States then you can have a firearm. We need to get back to the principals that this great nation was founded on, and back to the law abiding American citizens having more rights than the illegal aliens and criminals.

  4. avatar DaveL says:

    The article doesn’t say anything about allowing illegal aliens to have guns. It’s strictly about the gun rights of legal immigrants.

    Gun rights for legal immigrants vary enormously from state to state. For instance, Michigan had a similar case over handgun registration in Chan v. City of Troy, which struck down the current law (banning legal immigrants from registering handguns) under the 14th Amendment’s Equal Protection Clause. Basically, distinctions based on alienage have to pass “strict scrutiny” unless they deal with political rights reserved to citizens like voting or holding public office. In Chan the state failed to show the restriction was necessary to serve a compelling government purpose and that it was as narrowly tailored as possible.

    1. avatar Mike says:

      You are right DaveL, thanks for the info.

  5. avatar Ralph says:

    Discrimination by a state based upon legal “alienage” has been subject to hightened scrutiny for decades. Alienage is a suspect class. The Federal Government has immigration power under the Constitution, so federal discrimination against aliens is subject to “rational basis” scrutiny, which is a low threshhold. But since states have no such Constitutional power, discrimination against aliens is subject to hightened scrutiny. And don’t get your knickers in a bunch — discrimination just means different treatment, not some guy in a white sheet burning a cross.

    Legal aliens have many of the same rights as citizens, and why shouldn’t they? Illegals, not so much.

  6. avatar DevsAdvocate says:

    Yes. The Constitution/BoR makes no distinction between citizens and other people within out nation. Citizenship wasn’t even a controlled concept within our nation until a few racist and xenophobic locals created crazy rules to prevent them from coming here. Those same folks also created the first gun control laws to keep the hands out of immigrants as well (Sullivan Act, NYC)

    Remember, the 2nd Amendment is a restriction on the Gov’t that prevents it from infringing upon an intrinsic right to defend oneself against said Gov’ts capacity for tyranny. It’s not predicated on one being a citizen.

    1. avatar Ordine Nuovo says:

      The very first citizenship law in 1790 stated that only free White persons could be naturalized.

      Demographic protection has been a key component of America. See here for more:

      http://www.amren.com/mtnews/archives/2011/08/what_is_white_n.php

      1. avatar DaveL says:

        “Demographic protection” – you mean bare-faced racism?

        1. avatar Ralph says:

          Yes, that’s what he means.

        2. avatar Ordine Nuovo says:

          Thanks for taking the time to speak for me Ralph.

        3. avatar Ralph says:

          I live to serve.

        4. avatar Ordine Nuovo says:

          DaveL,

          I mean exactly what I said. No more and no less. Small amounts of aliens could be tolerated. But their numbers should be kept at 5% of the total population.

          America’s greatest years were her ones featuring a homogenous, majority Europid stock. These are the folks who built America.

        5. avatar DaveL says:

          Strange, unless I’m very much deceived, America still does feature a white majority. And according to Table 1 from this site, in 1790 the non-white population amounted to more than 20%.

          But I have to ask – “America’s greatest years” according to whom?

          I’m not even going to address the absurdity of a non-European country equating immigrants with non-Europeans.

        6. avatar Ordine Nuovo says:

          That White majority is slated for removal around 2050. Never hurts to be prepared. They were America’s greatest years for Whites…the audience I’m care deeply for.

          The 5% is the my ideal. You misunderstood, clearly. African slavery was an abhorrent practice. I wish it never happened and I wish slaves were never brought here. It was bad for us and bad for them.

        7. avatar Ordine Nuovo says:

          I care deeply for *

        8. avatar DaveL says:

          So you long for the days when whites had an even greater monopoly on power than we do now, but more importantly, used that power explicitly for their own benefit to the detriment of all others?

          Tell me, what’s the difference between one race that seizes exclusive control over the political process to promote its own welfare above the rest of the nation and a hereditary caste of royalty and nobility that does the same?

    2. avatar Bob says:

      +1
      The right to keep and bear arms is a natural right of all human beings, alien or not, legal alien or illegal. The 2nd Amendment does not grant that right. It guarantees that no government may infringe upon that right.

      However, there is another thing to consider when thinking about illegal aliens. When an illegal alien visits a government office to submit an application to carry concealed, that government agency should report him to INS/ICE for deportation.

      In other words, an illegal alien has the same gun rights as any other person, but we should not allow him to exercise his gun rights (or any other rights) in this country, because he should not be in this country.

      1. avatar Gabba says:

        not necessarily. it is and would be ethical for a government agency concerned with one aspect of public safety to concern itself with that aspect alone.

  7. avatar ExurbanKevin says:

    Illegal? No.

    Legal? Yes, and me and my gun safe are living proof of that.

  8. avatar Mark says:

    In that they are criminals committing a crime by being here illegally possession of a weapon should be an additional charge.

    1. avatar Gabba says:

      illegal immigration is not a crime, it is a civil offence. have you ever heard of anyone being tried for that crime?

  9. avatar DrewR55 says:

    From my prospective I have a problem with giving illegal aliens the same gun rights that U.S. Citizens have. Isn’t the key word ILLEGAL aliens? It seems to me that by their very presence in this country they are breaking laws, correct? Isn’t that the counter-argument we given when the federal governments talks about giving resident status or citizenship to “Law Abiding Undocumented Residents”?

    If a U.S. Citizen loses his gun rights for a non-violent felony then is it fair or just to give those same rights to a migrant worker who is commiting a non-violent felony by standing on the north side of the border?

  10. avatar GS650G says:

    “But what about illegal immigrants? Don’t they have gun rights too?”
    No. If they don’t like it they can go back where they came from.

  11. avatar DaveL says:

    As far as I know, federal law already bans illegal aliens from possessing firearms. This article does not propose extending gun rights to illegal aliens, nor am I aware of any such initiative. This is a fake controversy, so everyone just calm down.

    1. avatar Leo Atrox says:

      I would think that possession of a firearm during the commission of a crime would be illegal under US criminal code, but I cannot find a statute that covers possession during non-violent crime.

      Is this in the firearms laws? It doesn’t seem to be covered in US criminal code.

      And how does witholding rights work prior to conviction of a crime. An illegal immigrant is committing a crime, but can rights be restricted without conviction? Innocent until proven guilty, right?

      I think there’s still a whole lot of grey area. The laws either don’t exist, or they may contradict one another, or they might run contrary to interpretation of the US Consitution … It is for the courts to decide, I suppose.

      I know what my preference is; but whether or not my preference is in-line with the law, I don’t know.

      1. avatar DaveL says:

        It pretty much comes under the Gun Control Act of 1968. Since it was enacted under the guise of the Interstate Commerce clause it’s really more of a patchwork of provisions that effectively outlaw possession rather than something more straightforward.

        USC Title 18, Section 922(d)(5)(A) makes it illegal to sell or otherwise convey a firearm to an illegal alien. 922(g)(5)(A) makes it illegal for an illegal alien to carry a gun across state lines or receive or possess a gun or ammo that was shipped across state lines.

  12. avatar jkp says:

    Mention illegal aliens and all of a sudden everyone who hitherto said things like “the right to keep and bear arms is a natural, god-given right,” suddenly vanish.

    1. avatar DrewR55 says:

      Again, the key word here is “illegal” aliens. They are breaking a law by being here. The majority of people on this site are law abiding individuals and we enjoy our gun rights because we are not criminals.

      I do not mean to imply that someone who came here looking for work is as bad as a child molester or murder but in the eyes of the law all acts are illegal.

    2. avatar HSR47 says:

      “Mention illegal aliens and all of a sudden everyone who hitherto said things like “the right to keep and bear arms is a natural, god-given right,” suddenly vanish.”

      Sure, I’m one of those God-given rights guys, and I have no problem denying criminal aliens the right to exercise some of their rights–that is to say that I have no problem with it so long as past convictions can be used to deny the same rights.

    3. avatar Gabba says:

      they don’t vanish, they just reveal that they are liars.

  13. avatar Nico says:

    Why do illegal immigrants have ANY rights? Legal ones are fine, illegal ones need to vacate the premises or accept they aren’t going to get jack squat from the law.

    1. avatar DaveL says:

      Well, for one thing, because of the whole concept of Natural Rights as espoused by the Founding Fathers.

      But theoretical considerations aside, do you really think you ought to be able to enslave illegal aliens or hunt them for sport? Surely you must concede they have some rights.

      1. avatar GS650G says:

        Live overseas and you’ll see how accommodating the US is towards illegal immigration. It’s not tolerated in most places.

        1. avatar karlb says:

          Not really an answer to the question.

      2. avatar Nico says:

        Wait, that’s at least frowned upon, at most illegal?

        Well damnit.

  14. avatar copsoldier says:

    IMHO all law abiding citizens should be afforded the rights and privileges guaranteed in the Constitution. That being said, someone who is here illegally is NOT law abiding and some legals are NOT citizens.

  15. avatar copsoldier says:

    Continued…do we want tourists from non gun nations popping over for a visit and toting a hog leg? Be a legal C-I-T-I-Z-E-N. Then you can even vote if tou want.

    1. avatar DaveL says:

      Actually, quite a few tourists come to the U.S. to hunt, and naturally they carry guns. It doesn’t seem to have caused any significant problems.

      1. avatar GS650G says:

        Hunting with rented or borrowed guns is fine. Buying them in our stores maybe not so much. If they exported the gun back to their own country could they walk in with it? Probably not, most counties have laws against casual importation of guns.

        1. avatar DaveL says:

          I’m pretty sure most of them bring their own. There are really very few “non gun nations” in the sense of a total ban.

        2. avatar GS650G says:

          so there is no need for them to buy them here, no problem found,.

  16. avatar Tio Volatito says:

    Is it just me, or is anyone else bothered by Omaha’s registration requirement?

    1. avatar HSR47 says:

      It is interesting that you’re the first person to make that point; everyone else is hung up on the overly politicized issue of criminal immigration….

  17. avatar Michael Bakowski says:

    Illegal Citizens are not American citizens and have no rights thereof.

    Further more any illegal alien would not be able to purchase a firearm as they are obviously not law abiding. If they are here illegally they are technically committing a crime for being inside the gun store!

    1. avatar Gabba says:

      actually they are not committing a crime as illegal immigration is a civil offence not a criminal one.

  18. avatar Ordine Nuovo says:

    What part of “illegal” don’t folks understand? So my answer is an emphatic “NO” to criminal aliens possessing firearms. For all the cartel paranoia being pandered here I’d expect even Farago to agree with me here.

  19. avatar Tom says:

    The BATF believes that illegal immigrants who sell drugs and murder people should have guns through the Fast and Furious Program.

  20. avatar Rich T says:

    Hell NO.

    Legal residents should not either. They are residents, not CITIZENS.

    1. avatar DaveL says:

      I’m curious as to why you would say that. What do you think society has to gain in restricting the gun rights of lawful permanent residents?

      1. avatar Rich T says:

        As I said. They are residents and are not citizens. If they take the oath and become legalized citizens, then no issues.

        Big difference in the below definitions.

        citizen n. person who by place of birth, nationality of one or both parents, or by going through the naturalization process has sworn loyalty to a nation.

        resident n. a person who lives in a particular place

        Read the info at the link: http://volokh.com/posts/1218685192.shtml

        especially Johnson v. Eisentrager, 339 U.S. 763, 770-71 (1950

        1. avatar Ralph says:

          Johnson v. Eisentragerdealt with Nazi war criminals who had never been on American soil.

        2. avatar Rich T says:

          The Nazi part is irrelevant. The reasoning of the decision is what I was referring to and why the distinction between citizen & resident and what parts of the Constitution apply to the resident.

          Verdugo-Urquidez is but one example of a series of cases that recognize that foreign nationals or “aliens” are not entitled to all the rights and privileges of American citizens. Justice Jackson’s “ascending scale of rights” analysis is fully applicable today:

          The alien, to whom the United States has been traditionally hospitable, has been accorded a generous and ascending scale of rights as he increases his identity with our society. Mere lawful presence in the country creates an implied assurance of safe conduct and gives him certain rights; they become more extensive and secure when he makes preliminary declaration of intention to become a citizen, and they expand to those of full citizenship upon naturalization.

          Verdugo-Urquidez is but one example of a series of cases that recognize that foreign nationals or “aliens” are not entitled to all the rights and privileges of American citizens. Justice Jackson’s “ascending scale of rights” analysis is fully applicable today:

          The alien, to whom the United States has been traditionally hospitable, has been accorded a generous and ascending scale of rights as he increases his identity with our society. Mere lawful presence in the country creates an implied assurance of safe conduct and gives him certain rights; they become more extensive and secure when he makes preliminary declaration of intention to become a citizen, and they expand to those of full citizenship upon naturalization.

          Johnson v. Eisentrager, 339 U.S. 763, 770-71 (1950) (emphasis added). As a result, lawful resident aliens who are present within the constitution’s jurisdiction and have “developed substantial connections with this country” are entitled to minimal constitutional protections. The recognition of certain rights to resident aliens, however, does not mean that “all aliens are entitled to enjoy all the advantages of citizenship or, indeed, to the conclusion that all aliens must be placed in a single homogenous legal classification. For a host of constitutional and statutory provisions rest on the premise that a legitimate distinction between citizens and aliens may justify attributes and benefits for one class not accorded to the other; ….” 

        3. avatar DaveL says:

          That doesn’t actually answer my question. Why does that distinction matter when it comes to gun ownership? What overriding concern exists that would outweigh their right, for example, to self-defense? It’s not that they’re more likely to be criminal – legal permanent residents are all vetted by the government for the specific purpose of keeping out such undesirables. It’s not a political right like voting or holding public office. So what is it?

  21. avatar Derek says:

    I’m all for curbing illegall immigration to combat tax evasion, welfare abuse, welfare fraud etc. However, I don’t care where your from, where your at, or where your going. As far as I’m concerned, defending yourself, your loved ones, and your property from those that would offend them is a human right and not just an American one. Ours is just better protected than most.

    1. avatar matt says:

      What if your property is “offend”ed by a tax man? What is those mexican cartels started levying taxes on you?

      What does illegal immigration have to do with taxes and welfare again? Have any hard numbers, or are you just repeating what a talking head on the TV told you?

      And if you honestly belive that the human right to defend ones self is “protected” in the US, go kill or injure someone in a self defense secnario, report it to the police, and get back to me on how the police protected your right to self defense.

  22. avatar Pale Horse says:

    In a word: NOAs a legal immigrant I have a responsibility to abide by the laws of the land and therefor am afforded the rights found in the Bill of Rights, but if I break even a small “gun” law I will find myself getting deported.That’s right folks there is no reward to be found for the righteous, but if you violate the laws of the land and sneak on in, hell yea we’ll let you have a gun.

  23. avatar Bruce W. Krafft says:

    Of course they have “gun rights”! What are commonly called “gun rights” are actually natural, human, civil rights that we have by virtue of being people.

  24. avatar JustSomeGuy says:

    Like some others, I’m actually a little surprised at all the gun rights folks squawking at the idea of “criminal immigrants” (ridiculous term, IMO) exercising their rights. ANY of their rights. I actually hold these rights to be inherent, not granted by some government authority. And the stress on citizens vs. residents? Purported loyalty to the state has nothing to do with individual rights.

    See, I actually think citizens of Mexico have a right to bear arms in their own defense. Likewise citizens of Great Britain. Or China. The folks in Africa or the Middle East? Yep, they’ve got those rights to. Because they’re inherent. The fact that they are unable to exercise those rights in their home country has entirely to do with government tyranny.

    As to all this “illegal means they’re criminals means we can deny them whatever rights we feel like ’cause we wanna” BS: Some instances have been codified into law wherein the government is allowed to infringe on the rights of individuals for the protection of other individuals. Thus we have the curtailing of rights for felons. (I think this is a dangerous practice that should be restricted to only the most significant cases, and it currently is not, but that’s for another day) But there’s this little process the government is required to go through to pursue such infringement. In the absence of that process, we have this neat legal theory in the United States…innocent until proven guilty in a court of law. So before we go stripping rights from whole groups of people willy-nilly can we pay a little lip service to our own principles?

    I find the question of immigration seems to bring out the worst in people, fairly consistently. But I maintain that for those of you who believe individuals do not have certain rights because of their geographic origins or locations…you have not thought this through.

    JSG

  25. avatar Shaun L. says:

    Do I “want” illegals, legal residents or democrats to be allowed to own firearms of any kind?….. NO.

    I do however believe in the founding documents of this nation AS WRITTEN. I may not like it but the right to bear arms is not GIVEN by the government thus should not be able to be denied by them to ANYONE legal or illegal, citizen or non citizen.

    Sometimes standing by your principles even when you don’t LIKE the stance is the only way to set an example for future generations or retain any credibility in the future.

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