If anyone had any doubts about how the courts’ view of the Second Amendment to the Constitution, it should be quite clear by the recent decision of the Eighth Circuit Court of Appeals, decision which concurred with the Fifth Circuit ruling in United States v. Portillo-Muniz, that Second Amendment protections do not apply to illegal aliens (who are specifically barred from possessing firearms by 18 U.S.C. § 922(g)(5)). I see someone at the back of the class has their hand up…you have a question? You want to know why people who are here illegally should be granted the same rights as citizens? Excellent question…
Illegals should not be granted the same Constitutional rights as citizens for the same reason citizens should not be ‘granted’ these rights: Because our the rights listed in the Bill of Rights are not granted by the Constitution or the government, they belong to us by virtue of being human beings. Anyone remember this bit?
We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.
According to freedictionary.com, unalienable means “unable to be taken away from or given away by the possessor.” After the Constitution’s ratification, some of those unalienable rights were incorporated into the Constitution as the Bill of Rights, but that document no more created them than dirty underwear and wheat create mice. As the U.S. Supreme Court stated in U.S. v. Cruikshank, 92 U.S. 542 (1875):
The right of the people peaceably to assemble for lawful purposes existed long before the adoption of the Constitution of the United States. In fact, it is, and always has been, one of the attributes of citizenship under a free government. … It was not, therefore, a right granted to the people by the Constitution. The government of the United States when established found it in existence, with the obligation on the part of the States to afford it protection.
The Court then goes on to apply this logic to the Second Amendment as well, stating,
The second and tenth counts are equally defective. The right there specified is that of ‘bearing arms for a lawful purpose.’ This is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence. The second amendment declares that it shall not be infringed; but this, as has been seen, means no more than that it shall not be infringed by Congress.
Notice that nowhere in the ruling does the Court state that these pre-existing rights applied only to citizens. Indeed the language makes it clear that the Court felt these were human rights, not mere citizens’ rights.
And there are numerous other cases affirming the rights of illegals: Yick Wo v. Hopkins and Kaoru Yamataya v. Fisher, 189 U.S. 86 (1903) which held that aliens were covered by the due process and equal protection clauses of the 14th Amendment even if they were “alleged to be illegally here.” In Wong Wing v. US, the Court applied 5th and 6th Amendment protections to aliens, both legal and illegal.
In INS v. Lopez-Mendoza, the question arose whether the exclusionary rule should be applied to deportation proceedings of illegal aliens whose Fourth Amendment rights were violated by INS. At no point did the Court indicate that the Fourth Amendment did not protect illegals, instead they focused on weighing the social benefits versus possible social costs of applying the rule to deportation proceedings. In fact the Court states in Section V of their ruling,
We do not condone any violations of the Fourth Amendment that may have occurred in the arrests of respondents Lopez-Mendoza or Sandoval-Sanchez. … Our conclusions concerning the exclusionary rule’s value might change, if there developed good reason to believe that Fourth Amendment violations by INS officers were widespread. …
Thus indicating, quite powerfully, that Fourth Amendment protections do apply to illegals.
Yet for some reason, when it comes to the Second Amendment all of a sudden the courts get all wishy-washy on Constitutional protections. The Fifth Circuit could have looked to United States v. Verdugo-Urquidez, 494 U.S. 259 (1990) where SCOTUS said:
‘[T]he people’ seems to have been a term of art employed in select parts of the Constitution. … While this textual exegesis is by no means conclusive, it suggests that ‘the people’ protected by the Fourth Amendment, and by the First and Second Amendments, and to whom rights and powers are reserved in the Ninth and Tenth Amendments, refers to a class of persons who are part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community.
Instead they looked to District of Columbia v. Heller (not unreasonable, given that Heller directly addressed the Second Amendment), but it is telling what portion of the Heller ruling they cited,
… However, the Court’s language does provide some guidance as to the meaning of the term ‘the people’ as it is used in the Second Amendment. The Court held the Second Amendment ‘surely elevates above all other interests the right of law-abiding, responsible citizens to use arms in defense of hearth and home.’ Id. Furthermore, the Court noted that ‘in all six other provisions of the Constitution that mention ‘the people,’ the term unambiguously refers to all members of the political community, not an unspecified subset’ … The Court’s language in Heller invalidates Portillo’s attempt to extend the protections of the Second Amendment to illegal aliens. …
But even within that citation is the guidance which the Fifth Circuit claimed to be looking for, but chose to ignore when SCOTUS analogizes the use of ‘the people’ in the Second Amendment with its use in all the other amendments. Most of which, as we have seen, have been held directly to apply to illegals. Furthermore, if the Fifth Circuit was actually looking for guidance they could have found it in the first sentences of the very paragraph that they quote, where SCOTUS says,
We know of no other enumerated constitutional right whose core protection has been subjected to a freestanding ‘interest-balancing’ approach. The very enumeration of the right takes out of the hands of government—even the Third Branch of Government—the power to decide on a case-by-case basis whether the right is really worth insisting upon. … [emphasis in original]
With all these precedents it’s hard to see how any court, looking honestly at the Constitution and the law, could fail to conclude that “the freedom to own and carry the weapon of your choice is a natural, fundamental, and inalienable human, individual, civil, and Constitutional right — subject neither to the democratic process nor to arguments grounded in social utility.”[1]
Unless, of course, the Second Amendment is a pariah, and no more welcome in the Bill of Rights than a bastard stepchild at a family reunion.
[1] L. Neil Smith, Letter to a Liberal Colleague.