U.S. Permanent Resident Sues Hawaii for Deprivation of Second Amendment Rights

It is long established law that United States residents who are not U.S. citizens enjoy the same Constitutional protections as U.S. citizens, with minor exceptions, under the equal protections clause of the Fourteenth Amendment.  Several recent cases have reaffirmed that precedent. Voting is specifically limited to Citizens in the Constitution. A permanent resident of Hawaii, Andrew Namiki Roberts, is suing the Honolulu Police Department for denying him the right to own a handgun for self defense.

From the staradvertiser.com:

Honolulu resident Andrew Namiki Roberts, who was born in England, was given a permit to acquire rifles and shotguns, which must first be obtained before purchasing one. He then took a firearms safety course, which is required to obtain a permit for a handgun, according to his lawsuit. But when he tried to get a handgun permit, he was told his background check was deemed incomplete and that he needed a letter from the British consulate clearing his background.

His lawyer, Richard Holcomb, said the department couldn’t produce written policy about requiring such documentation, but even if it could, it’s an unfair requirement. “They can’t discriminate against permanent resident aliens,” he said.

To add additional injury, the department seized his legally acquired shotgun:

The department also revoked his previously issued permit that allowed him to purchase a shotgun and then seized the weapon he bought from Sports Authority, the lawsuit said.

In the case of Steve Fotoudis vs City and County of Hawaii(pdf) in 2014, a federal judge ruled that permanent resident aliens have the same rights to acquire, keep, and use firearms as do United States citizens.  From the decision:

The undisputed facts establish that Fotoudis, as a lawful permanent resident alien of the United States (and resident of Hawaii), was denied the opportunity to apply for a permit to acquire firearms solely because of his alienage.3 This classification violates the equal protection clause of the U.S. Constitution. HRS § 134-2(d) is thus unconstitutional as-applied to Fotoudis (and other lawful permanent resident aliens), and Defendants are therefore permanently enjoined from denying Fotoudis the opportunity (1) to apply for a permit to acquire firearms, and (2) to obtain such a permit, if he otherwise meets the qualifications of state law, as specifically set forth in the Conclusion of this Order.4

The  decision states, in the conclusion:

(b) evaluate in the normal course, with no more or less scrutiny than would be applied to a citizen applicant, Fotoudis’ application and background to determine his fitness and qualifications to acquire firearms lawfully;

This is likely to be another defeat for the civilian disarmers entrenched in the Hawaii and Honolulu governments.

As we have seen with other disarmist governments in the District of Columbia and Chicago, they fight against the constitutional rights of their residents with continual small changes of law, claiming that each change is new law that must be fought out in the courts.  It is a tactic used to delay the free exercise of Constitutional right.  In the case in Hawaii, it is not even a statute or a written regulation.  It is just another hurdle that was hastily erected on the spot by the Honolulu Police Department.

Perhaps, at some point, a judge will cease to be amused by these heavy handed tactics.

©2015 by Dean Weingarten: Permission to share is granted when this notice is included.
Gun Watch

comments

  1. avatar Roymond says:

    I keep hoping a judge will man up and note that tweaking the same law and calling it a new one when a court has ordered them to change it is contempt, and throw an entire city council or legislature in jail for thirty days.

  2. avatar Shannon'a Pimp says:

    Not really a case of being denied a permit to purchase a handgun based on nationality and permanent residence. The police made the decision since they could not verify his criminal record in the UK. Though I am against the requirement to obtain a permit to purchase, aliens can legally be subject to additional scrutiny by law enforcement. Until an alien adjusts status to citizen he can also be subject to deportation and detention until he can prove his legal status. Resident aliens, green card holders, are required by law to always be in possession of their resident alien cards and can be detained by immigration officials until they can produce it. Law enforcement can deny the permit to purchase until he produces a copy of his criminal record from his former country. He’d have much more of a case if he were a citizen.

    1. avatar Ralph says:

      Because alienage and citizenship fall within the exclusive jurisdiction of Federal laws, alienage is a suspect classification. Since Graham v. Richardson in 1971, state action based on legal alienage has been subject to strict scrutiny.

    2. avatar Stuart says:

      but to become a legal permanent resident in the first place requires a full background check in your country of origin, which includes a “copy of his criminal record from his former country”. Please don’t try to find excuses for Hawai’i, none exist: this is, plain and simple, unconstitutional.

    3. avatar James Lee says:

      His background check was done before being issued a green card. Suppose he has never left the US ever since, there is no need for a letter from the consulate. Even if he has left the US during the period, a US citizen who has done the same wouldnt be required to get a letter from whatever country to prove innocence during his stay abroad. The dude became a green card holder for a reason, that he is a beneficial person to the economy of America. He is a working taxpayer, i suppose. Speak up for legal aliens, or wait until the govt comes for us citizens.

      1. avatar Jared says:

        Exactly, what about a citizen who lived overseas for 15 years who moved back to Hawaii. Last time I registered a gun in Hawaii, they didn’t ask if I lived outside of the US.

        It’s pointless gun control.

        But of course some of the bigots come out of the woodwork. Why does anyone care if he’s a permanent resident or a citizen, stop being a busybody as its none of anyone’s business.

    4. avatar Cliff H says:

      So you’re saying that once you become a naturalized citizen your criminal history, if any, from your pre-citizenship days becomes moot? If that is the case, why does it matter at all?

      Not that I support government permission slips for exercising a basic human right, just a question on the legal logic.

      1. avatar MurrDog says:

        I think he’s saying that if the guy had an extensive criminal background he wouldn’t (or shouldn’t) of been given a green card and allowed into the country in the first place.

      2. avatar Stuart says:

        who said that? The whole point of legal permanent resident status (A.K.A. “green card”) is to know your criminal history before you seek to become resident in the USA. That, plus your behaviour here, can become grounds for refusal, attaching conditions, or granting your application to come to the US. They will also affect your later application for citizenship – if you have been naughty enough, not only will ICE refuse your citizenship application they could revoke your Legal Permanent Resident status and deport you.

      3. avatar Shannon'a Pimp says:

        No, not at all. I am just highlighting that the laws which govern aliens, are a little different than U.S. citizens. He’d have a better case if he were a citizen because the police probably wouldn’t have asked for the additional criminal check from the consulate or embassy.

        1. avatar Art out West says:

          The State Department has to check your background before you even get a Permanent Resdency. If he was a felon in the UK, he never would have been cleared to get the green card. My wife is from another country, and had to have a background check to even get a “fiance visa” which is a precursor to green card.

    5. avatar Jared says:

      Where are you getting your information from? It’s completely wrong and without any merit.

      They can not ask for any additional information, nor does Hawaii have ANY jurisdiction over immigration whatsoever.

      Furthermore, the State Department already has his criminal history from the U.K.

      The fact is that permanent residents are held to higher standards than “citizens”.

    6. avatar Leo Edwards says:

      A lot of things wrong with what you said there. Yoy are confusing lawful permanent resident alien with illegal immigrant. A LPR cannot be held until they prove who they are any more than a citizen can. I am a conditional LPR and don’t have to have my ID on me at all times unless in NM which in itself is probably unconstitutional.

      There are no laws requiring requiring further background checks for a permit. My NC pistol permit came back in 4 days and there is no way they checked through New Scotland Yard in that time. As someone said, an American living abroad then coming home dosnt have to prove his abroad history. Equal protection under law buddy I.e. 14th amendment.

      Virginia tried to dent my CHP on a similar basis. Didn’t like it but they had no lawful basis to deny. They made up the excuse although I was “lawfully admitted to the USA for conditional permanent residence” I apparently wasn’t a permanent resident. Yeah get that. The conditional is that I have to prove to the USCIS I’m still married to the American wife before 2 years are up and even then I can still stay if not. All the rights of an LPR but there’s a school of thought that only citizens can have guns in tb USA. There’s also these people:

      Foreign military
      Security for foreign diplomats
      People on shooting comps
      Foreign police e.g. rendition someone to CA from Mexico

      1. avatar Stuart says:

        you are required under Federal law to have your LPR card with you at all times, one of the few occasions where carrying ID is mandated.

    7. avatar Ragnar says:

      The police didn’t have any problem approving his purchase of a rifle and shotgun, but somehow a pistol requires more scrutiny? Not buying that.

  3. avatar Russ in AK says:

    What the hell is a “permanent resident alien” anyway?

    As far as I’m concerned, if you’re in this country, you need to either be a citizen, on vacation, seeking higher education or attending a work function. None of this “permanent resident alien” BS.

    “Immigration without assimilation is an invasion.”

    1. avatar James Lee says:

      A permanemt resident alien is a Foreigner who, upon permission by the US govt, can live, study and work in the US for as long as he/she wants. A green card is issued as an ID, which is revokable. Enjoy all our benefits, obey all our laws. They can’t vote, though. As for assimilation, well, at least they are less likely to fuck a goat here

    2. avatar Stuart says:

      thankfully hate filled bigots like you didn’t handle my application to move to the USA from Scotland.

      Here’s the simplified version: “legal permanent resident alien” is also called “green card”, which is another way of saying I GOT HERE BY FOLLOWING THE LAW.

    3. avatar Spider Elliott says:

      Usually, becoming a permanent resident alien is a required step toward becoming a naturalized citizen. A lot of us had to be “resident aliens” for a minimum of five years (three if you’re married to a U.S. citizen) before we could apply for the citizenship.

      Now, that’s information based on when I was naturalized many years ago. There may be exceptions that I’m not aware of, and laws probably have changed since them.

      1. avatar Stuart says:

        Spider, that was the same for me. Got LPR status in 2005, naturalised in 2011. Technically I could have applied in 2003 after 3rd anniversary, but the wife and I weren’t at the stage of wanting to move at that point.

      2. avatar Jared says:

        Many citizens are completely ignorant about the immigration process, many couldn’t even pass the naturalization test if they had to.

        But it’s common for some of these “citizens” who bitch and moan about fundamental rights not being respected but then they whine about someone who’s legally here from having access to the same fundamental rights.

        They are called hypocrites.

    4. avatar CarlosT says:

      “Permanent resident alien” = “legal immigrant” = “someone following the rules”.

      A permanent resident alien, i.e. green card holder, works a job, pays taxes, and in the likely case they’re going for citizenship, they’re actually going to know something about the US, its history, its institutions, and how they work. That’s because, unlike birthright citizens, we have to pass an oral exam on those kinds of questions.

      I think because my teacher wanted to make a point, back in the day my high school history class took a quiz on the 100 study questions they provide for the citizenship exam. The average was less than 50%. I got 100, easily. This was even before I was really seriously focused on moving on to citizenship.

      As for assimilation, there are green card holders everywhere. There are green card holders serving in the military. The guy who works next to you, same as you , could be your twin, could be a on a green card for all you know.

  4. avatar Hannibal says:

    “They can’t discriminate against permanent resident aliens…”

    It’s Hawaii. They aren’t discriminating against resident aliens, they’re discriminating against EVERYONE who wants to own a gun and the fact that this guy is an alien just changes their method slightly. If he were a citizen from Texas they would have found some other reason to deny him…

  5. avatar Matt in Pa says:

    Do it as a citizen in N.J.. Get back to me. N.Y. etc.

  6. avatar Anonymoose says:

    And here I could have sworn Hawaii was part of Japan, or maybe China? In any case, it’s not a “free” place.

  7. avatar Rand says:

    A resident of Hawaii is scrutinized more than a tourist. I live in Washington state and frequent Hawaii with my firearm. I only had to present it to the police department for verification of the model and serial number along with fingerprints for a background check. Then they issued a registration certificate good for all future travel with that pistol. No waiting or pre-permits to own.

  8. avatar Chip Bennett says:

    Leftist bigots gonna bigot – and then project their bigotry on the rest of us.

    The rights protected by the second amendment are natural, inherent, and apply to all, regardless of nationality or skin color.

    1. avatar James Lee says:

      Hopefully our rights arent afforded to ILLEGAL aliens who do nothing but collect welfare and cause crimes. I’m all for rounding them up and send them off where they belong, and bill their countries for the plane tickets. Oh, without violating the 4th amendment rights of everyone else in the US, though.

  9. avatar PewPewPew says:

    I believe new mexico has i requirement that a ccw permit holder be a citizen too. And that’s an official on the books rule. I wonder if this ruling would have any effect on that.

    As a legal immigrant, who underwent background checks, finger prints (including rolls and palms), medical checks (thr doctor even had to look at my junk for some reason), and even got my iris scanned at thr airport, i find it a little insulting that my NICS checks always take two days when i go to buy a gun.

    1. avatar Jared says:

      You are all set to apply in New Mexico. New Mexico was on the list of states I have SAF years ago to target.

      NM can no longer violate your fundamental right addition to what they already do to citizens.

      Apply and you will receive your CHL

      1. avatar PewPewPew says:

        That’s good to know, thanks.

        However, i actually live in iowa. I just researched their laws when i went down there for a wedding last year.

        Iowa’s laws when it comes to carry are about the next best thing to constitutional carry. If only we had access to all forms of hearing protection i would be nearly satisfied with the laws here.

    2. avatar int19h says:

      SAF and ACLU have been teaming up on this particular matter in the past few years. In particular, when Washington State refused to issue alien firearm licenses to all aliens back in 2008, SAF sued the state with ACLU backing, and after the judge had basically ripped the state’s arguments apart in a preliminary hearing, they backtracked (so it didn’t set any precedent, but now aliens can own and carry firearms legally in WA). As I recall, there was also a SAF-driven court case in New Mexico about this issue.

  10. avatar Dyspeptic Gunsmith says:

    As a FFL, we’re told that people in the US legally on a green card are able to buy guns. We have to record their green card info (ie, “alien number”).

    A non-immigrant alien is a wobbler of an issue – they can possess a gun, and have to conform to one of the exceptions (eg, hunting, and they have a hunting license, or they’re here for job training, or are foreign LEO’s, etc). They’re able to possess a gun (either on rental or imported on their paperwork) for their use while in the US. It’s a complicated issue, but there are instances where non-immigrant aliens are able to possess guns while in the US.

    1. avatar Jared says:

      It’s not a “wobbler”, the ATF clearly explains how to proceed with the sale in plain English.

      Get a copy of their hunting license, 3 months of residency (utility bill etc), and a copy of immigration documents (I-94 etc).

      That’s all, it’s not really that hard.

      1. avatar Dyspeptic Gunsmith says:

        I know what the ATF regs say.

        What the ATF is silent on is the issue of “how do you check their docs?” I don’t know what every surrounding out-of-state hunting license looks like, nor how to verify them. Nor is some letter printed off on a laser printer stating that they’re attending some LEO conference or training all that difficult to gin up.

        As the ATF tells me (repeatedly), “We’ll never come after you for not transferring a gun to someone.” I can verify a green card – the other docs are more difficult to verify, and given the agendas at work in this administration, I’m not eager to give the ATF reasons to pull my FFL.

        This is a documentation/verification problem that the DHS/INS/etc could solve, but they don’t want to.

      2. avatar int19h says:

        >> , 3 months of residency (utility bill etc)

        This hasn’t been a requirement for a couple of years now.

        (Residency itself is, but you don’t need to show the bills to prove it. A driver’s license issued by the state is enough.)

  11. avatar Salty Bear says:

    We are endowed by our creator with certain unalienable rights … as long as we were born within imaginary boundaries drawn on maps! And only if the politicians and cops say so!

  12. avatar Federale says:

    Like not voting, like not qualified to be an officer in the military, prohibited by Federal government and most States from being government employees. Firearms is a political right of citizenship and should not be allowed to aliens.

    1. avatar CJ says:

      Firearms ownership is not a political right, it is a natural right. Hawaii’s license to own laws are unconstitutional, period. The rights recognized by the Bill of Rights belong to all people subject to the laws of this nation, at the minimum. Permanent resident aliens are very much subjects of the law.

      If you have a concerns with legal immigrants (concerns of loyalty, etc), that is understandable. That is a political issue, and one addressed by the naturalization laws themselves. Make them more strict and limited if necessary.

    2. avatar Roymond says:

      Limiting inherent rights to citizens is fascist.

    3. avatar int19h says:

      “The right of people to keep and bear arms shall not be infringed.”

      It doesn’t say “citizens” there – it says “people”.

      And before you say that “people” really meant “citizens” there – if it did, then why did they specifically use the word “citizen” elsewhere in the constitution, e.g. when defining eligibility for office? The only reasonable assumption is that people who wrote it used the two different words in different cases deliberately.

      This is as far as legalese goes. If you believe in natural rights, then self-defense is one, and obviously applies to everyone.

      1. avatar Roymond says:

        Superbly and truly said.

  13. avatar Watts' Twat says:

    This a slippery slope especially after what we saw in Paris last night. Who wants one of Obama’s “Syrian” (most AREN’T from Syria), Muslim (he’s NOT letting Christians in), “refugees” (they’re NOT all fleeing ISIS) undergoing screening by HIS, Hussein’s, State Department (Hello? John Kerry/Hilary Clinton) and their “background check”, getting a “green card”, and moving into YOUR neighborhood or next to YOUR child’s school AND acquiring a firearm? Just look at ALL the illegal Mestizo invaders that Obama has allowed into the USA and THEIR criminal records to see how well that system works.

    1. avatar Watts' Twat says:

      BTW Those “Syrian” Muslim “refugees” I mentioned above THEY’RE now HERE, the first load of this refuse HAS arrived in New Orleans: http://www.walb.com/story/30428985/syrian-refugees-beginning-to-arrive-in-new-orleans#.VkfrhL4Fw9I.facebook

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