Racist “Insular Cases” May Hinder Application of 2A to U.S. Territories

David Radich, a retired Navy Petty Officer, and veteran of the first Iraq war, settled down in the Commonwealth of the Northern Mariana Islands in the Western Pacific after separating from the service. Unfortunately, he came home one day in 2010 to find his wife seriously injured after a violent attack. He told his story to Stars and Stripes:

“I found my wife on the floor of the apartment in really bad shape,” Radich said. “Her face was unrecognizable.”

The attacker had broken into their home as Li-Rong was making breakfast, then began beating her and demanding money but ran out after she began screaming loudly, Radich said. She suffered broken ribs, an orbital fracture, bruises to the face and a concussion.

‘It’s an equalizer’

Radich said he began thinking about getting a handgun for his wife.

“The guy who came into my house was about 6 foot, maybe 200 pounds,” he said. “My wife is about 4-foot-11 and weighs about 100 pounds.

“I thought, well, it’s an equalizer. If my wife had had the ability to deter a crime …,” Radich paused. “Most people who defend themselves with a firearm never actually fire it. It’s the presence of the gun in the hand of the would-be victim that usually deters the crime from happening.”

Unfortunately, he found himself stymied by the Commonwealth’s gun laws.

Most Americans would be hard-pressed to find the Commonwealth Northern Mariana Islands on a map, and just as many would probably not realize that it’s a territory of the United States that’s been under American rule since the Second World War. (Ever hear of the Battle of Saipan? Saipan is the most populous of the Mariana Islands.)

The residents of the islands are American citizens, just as with Puerto Rico. And also just as with Puerto Rico, the Mariana Islands have some rather strict anti-gun laws. Not only is a firearms ID card require just to purchase a gun, and only rifles capable of firing .22 caliber rimfire, .410 gauge shotguns, and (for those lucky enough to get a ‘special weapons card’) .223 caliber rifles appear to be allowed. It’s a veritable gun-banners’ paradise.

Naturally, violent crime seems to be undeterred by such gun control laws.

Aided by the Second Amendment Foundation, Radich filed suit against the Commonwealth in Federal Court, arguing that the Commonwealth’s outright bans were a violation of his second amendment rights. The case was dismissed on technical grounds earlier in March, but the Court has allowed Radich to file an amended complaint, which is expected to be filed.

With precedents such as Heller already existing, one would think this would be a fairly straightforward case. However, even though the Islanders are all U.S. Citizens, there are a series of decision made by the U.S. Supreme Court in 1901 that may throw a monkey wrench into the Radich’s case: The Insular Cases. The cases, which adjudicated a series of issues that came about during America’s foray into formal imperialism after the Spanish-American War and acquired a series of island colonies from Puerto Rico to the Philippines.

We needn’t get into the weeds there, but the cases established the proposition that inhabitants of ‘unincorporated territories’ (i.e., the islands conquered by American arms and ruled as colonies,) “even if they are U.S. citizens,” may lack some constitutional rights possessed by other Americans. Even though these new territories were American territory, they were not part of the United States. In short: the Constitution does not necessarily follow the flag.

The debate around imperialism and annexation of the territories (and by extension, the arguments from which the Insular Cases flowed,) was conducted in terms that would have been beyond the pale today, such as:

* The idea that democracy and imperialism are compatible;
* People are not created equal – certain ethnic groups may be superior to others;
* It is the burden of these superior peoples (the “White Man’s Burden”, if you will,) to raise those backward people up to civilization.

It’s long been clear that gun control in America has historically been part-and-parcel of racist oppression of disfavored ethnic groups — so it was in the 19th and 20th centuries; so it is today.

I do not know the basis on which the Commonwealth of the Northern Mariana Islands will try to defend its gun ban. It will be interesting to see whether or not they will be willing to hang their argument on these outdated cases from 19th century racist imperialism, and whether or not the Federal Court for the Northern Mariana Islands — and the 9th Circuit above it — will allow them to do so.

comments

  1. avatar LarryinTX says:

    Almost hard to believe, isn’t it?

  2. avatar PeterW says:

    Didn’t we fight a war or something over this a couple hundred years ago?
    Who won?

  3. avatar Pantera Vazquez says:

    So how long before the executive branch jumps into the fray……for the sake of the children?

    1. avatar 80 D says:

      The article makes a strong argument for the executive branch to jump in the fray. Wonder when that’ll happen.

  4. avatar Grindstone says:

    Its far past time we stopped treating colonies as valid options in this day and age. They need to be brought into the fold or given independence. If they are US citizens, they then MUST enjoy full rights and responsibilities.

  5. avatar Former Water Walker says:

    I guess it’s not paradise if you can’t defend yourself. Like Hawaii only worse? Hope they can change things…

  6. avatar BDub says:

    “…may lack some constitutional rights possessed by other Americans.”

    One quibble: You can’t lack Constitutional Rights, you can only lack Constitutional protection of the Rights you retain. The distinction matters.

    1. avatar O2HeN2 says:

      Excellent point, though I believe it would be more correct to state:

      You can’t lack Rights, you can only lack protection of those Rights.”

      O2

      Ps. I lived on Saipan for a couple summers in the mid-70s. Corruption and nepotism abounded on the island. The drug bill that passed while I was there was my first exposure to “We need to pass it to see what’s in it.” Many of the Trust Territory Senators (?) voted for it while chewing betel nut, unaware that the bill they were passing outlawed it…

      As a white kid I got to feel the sting of racism from the wrong side — as if there’s a “right” side. Made me more aware of the problem, that’s for sure.

      …and to this day I remember the local paper whose headline read one day: “Car strikes large male cow”

  7. avatar Tommy Knocker says:

    Next post …. would like to hear how Indian reservations handle 2A and possible challenges. Since they are treaty recognized “nations”.

    1. avatar sagebrushracer says:

      yes, actually that is interesting to me as well. the more you know…

    2. avatar NYC2AZ says:

      The short answer is that each tribe does whatever they want.

    3. avatar ThomasR says:

      Reservations? One of the best examples of the results of socialism. Unemployment, Drug use, alcoholism, gangs, domestic violence, robbery, assaults are way above the national average.

      Many reservations deny the right to keep and bear arms as well as denying property rights. Piss off someone on the Indian Council, they can kick that tribal member out of their house (the tribal house) and off the reservation.

      Everything that comes from the state ownership of everything. The Utopia all statists dream of, and what is the result of living the “dream”.

      1. avatar James69 says:

        Yeah but they got casino’s and now from what I understand they can grow and sell weed!!!!

      2. avatar Nate says:

        The amount of bodies on an indian reservation is probably surprising too. More than a few homicides lead to indian reservations. The ones around here are dumping grounds for stolen cars and a while they have a good relationship with my county sheriff’s office they still have plenty of secrets. Trooper told me about the guns they have here on the res, automatics, SBR’s, all in a little “Nation” surrounded by NY State! Interstate goes right through it too….

  8. avatar James69 says:

    Yeah!! Give em guns so they can rise up and kick the brits oh, I mean us out.

  9. avatar NYC2AZ says:

    “* The idea that democracy and imperialism are compatible;
    * People are not created equal – certain ethnic groups may be superior to others;
    * It is the burden of these superior peoples (the “White Man’s Burden”, if you will,) to raise those backward people up to civilization.”

    Any bet the sjw crowd will make yet another exception for this line of thinking? Ends justifying means, for the greater good, for the children, etc…

  10. avatar uncommon_sense says:

    If the Peruta v. San Diego decision ever becomes final in the 9th Circuit, wouldn’t it be binding on the Commonwealth of the Northern Mariana Islands since they are within the jurisdiction of the 9th Circuit?

    1. avatar KingSarc48625 says:

      Well, Shall Not Be Infringed should be binding to all US lands. But we all know the truth behind that.

  11. avatar MarkPA says:

    An unbelievable case; and a wonderful opportunity for the 9th Circuit to put it’s 2A paranoia in juxtaposition with its support of the 14A.
    We can assume a very left-wing panel will here this appeal (once it runs its course in the Islands). What will it be able to do to confine the Constitution to the United States without resort to these racist doctrines? What doctrine of scrutiny would it resort to? Any-fool? Reasonable relationship? Or Strict-scrutiny?
    If David is a citizen-OFWG how could the raciest rationale be applied to him? Is he the only plaintiff or are both husband and (minority) wife both plaintiffs?

  12. avatar John in Ohio says:

    It appears that the Wikipedia link in the article (https://en.wikipedia.org/wiki/Insular_Cases+) is incorrect. I think the link intended was https://en.wikipedia.org/wiki/Insular_Cases.

  13. The covenant establishing the commonwealth states that Amendments 1-9, 14 and some others are to apply, see: http://www.gpo.gov/fdsys/pkg/STATUTE-90/pdf/STATUTE-90-Pg263.pdf

    Section 102 and especially Section 501(a) (page 5)

  14. avatar Reyberto Colón says:

    The Insular Cases are a shameful chapter in our judicial history. The mindset at the time was one of blatant and nonchalant racism. I was born and raised in Puerto Rico (moved to the Great State of Texas as fast as I could) and the history of those cases and how puertoricans were granted (or impossed depending on who you ask) their citizenship, is conveniently swept under the rug in schools. Those cases determined the framework of how the relation between the metropolitan government and the territories would interact. John Oliver did a very entertaining segment of this a few weeks ago. I ‘ll post a link if you are in for a good laugh and some insight on the issue.

    https://m.youtube.com/watch?v=CesHr99ezWE

  15. avatar Gov. William J. Le Petomane says:

    ‘…the cases established the proposition that inhabitants of ‘unincorporated territories’ (i.e., the islands conquered by American arms and ruled as colonies,) “even if they are U.S. citizens,” may lack some constitutional rights possessed by other Americans. Even though these new territories were American territory, they were not part of the United States…’

    This was exactly the position the British Empire had 239 years ago.

    1. avatar Burley Ole'Bear says:

      …beat me to it. Although, if Britain commanded the mightiest air power in the world 239 years ago, we’d all still be British colonists.

  16. avatar Indiana Tom says:

    Seems like a policy for our little brown friends in our conquered territories of which we will guide them with our wit and wisdom. Was this the fulll dinner pail? Well, it was full of something.

  17. Come to this country illegally and you can be protected under those constitutional rights but these people can’t?Seems like it would be pretty easy to call BS. Discusting

  18. Only problem in your “racism” claim is that it’s the people of color who want gun control, just as it is minorities who want gun control in the rest of the United States. Blacks and Hispanics support gun control. Perhaps they agree with Bloomberg that blacks and Hispanics are violent and dangerous, just as the crime statistics show.

  19. I have read many things and the way Americans are treated like second class humans will STOP. You are an American on American soil the Constitution is in FULL force and the 2nd Amendment will be held to the letter. If you are a sailor and are flying an American flag and are NOT breaking American law you will have the full support of the Presidency. That means you can carry firearms to protect yourself ON your boat. If a foreign government does not like what you have on your boat, “in your castle”, they should stay off YOUR AMERICAN boat. Thank you for your support and vote. Pass the word. mrpresident2016.com

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