> Any law making it illegal for him to possess firearms is likely unconstitutional. The only places where citizenship is explicitly mentioned in the US Constitution is in regard to eligibility for federal offices and jurisdiction of the federal courts. To a non-lawyer, it looks like a slam dunk.
It's not a slam dunk. The second amendment reads:
> A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed."
Who are "the people?" In the Preamble to the Constitution, the phrase "the people" clearly refers to the political community creating the new government, which arguably excludes illegal aliens. The Supreme Court in Heller v. District of Columbia construed "the people" in a way that is consistent with that use, and which lower courts have taken to mean that illegal aliens don't have second amendment rights.
However, the bill of rights uses "the people" to refer to the first amendment right to peaceably assemble, and the fourth amendment right to be protected against unlawful search and seizure. If "the people" is interpreted consistently for all the amendments, that implies that illegal aliens don't have several rights under the bill of rights, which is problematic.
Echoing your 'problematic' point, the author concludes:
"My point is simply this: if the Second Amendment protects a truly fundamental individual right, then barring any firearm possession by all illegal aliens cannot be upheld without more—a more robust judicial holding that its fundamental protections are categorically denied to a class of persons, or a more-than-cursory legislative justification for the restriction of these protections. If the statute can stand as is, then perhaps the right to bear arms is less central to the constitutional pantheon than its most zealous advocates would have us believe."
In the Preamble to the Constitution, the phrase "the people" clearly refers to the political community creating the new government, which arguably excludes illegal aliens.
This would seem to also exclude citizens who do not vote or hold office. And oddly it would imply that an undocumented drug-dealer with a fake voter ID is more protected than otherwise law abiding 'illegal alien' who dutifully supports the government with their taxes. How is that resolved?
I interpret the fact that "people" and "citizen" are used in different places for different purposes to mean that the choice of wording does have significance.
In any case, the Constitution is a limiting document. It restricts what the government is allowed to do. In the context of the 2nd amendment, it is not allowed to create arms control laws. It does anyway. Differences in the de facto exercise of rights between citizens and non-citizens are likely due to different levels of access to the court system and in relative political clout, rather than some underlying intent that is not obvious in the document itself.
By plain reading of the law, "the people" means the people. It includes any humans acting in their own capacity, as themselves, rather than as the agents or representatives of another legally distinct entity. Begging the pardon of the state, and its judges, but the people do not find it convenient for the state to redefine what personhood means, especially when done in a way that skirts the limits set forth by the people for the government.
You have to be a lawyer to think that "the people" does not include any person. A non-lawyer can apply the common meaning of the word and use it without stopping to argue over whether it means what it means.
I don't give a fig whether it is about Mexicans or Tenctonese. If they are people at all, they are people who have the right to keep and bear arms.
Besides that, if "the people" were so defined as to include only those people who created the government, I, as someone born more than 200 years later, would certainly not qualify. If you exclude illegal aliens on that basis, you exclude everyone who did not explicitly ratify the original document, which is to say almost everyone alive today, excluding only those who have sworn an oath of office. If I am not thus protected by the law, I am not obligated to follow it. Do we really want to open up that can of worms? Lysander Spooner's "No Treason" essays may elucidate further, but I think perhaps it would be a greater boon to civil order if we agree that "the people" are not necessarily a specific subset of people.
Begging the pardon of the state, and its judges, but the people do not find it convenient for the state to redefine what personhood means, especially when done in a way that skirts the limits set forth by the people for the government.
As Justice Jackson said 'we are not final because we are infallible; we are infallible only because we are final.' The Supreme Court and those deriving from it exists not to establish truth but to settle controversies, even though this may mean inconsistent behavior over time. In that sense, it functions OK.
The Constitution was: 1) written by lawyers; 2) written by lawyers who said "people" in many places in the Constitution but meant "people except blacks and women."; 3) written by lawyers who never intended the Bill of Rights to apply to state governments and state laws.
> In any case, the Constitution is a limiting document. It restricts what the government is allowed to do.
Many people argue that you've got it backwards. I've been told that some of the founders opposed the Bill of Rights precisely because they feared it would be treated as an exclusive list of limitations.
The rest of The Constitution, in stark contrast to the BoR, grants specific powers to the federal government. Some people argue that it's that body of text which should be considered an exhaustive enumeration. That is to say, any claimed power that can't be explicitly justified under those articles is not granted to the federal government.
If the Constitution is just an enabling document, rather than a limiting one, what do we use all the men with guns for, and how did governments without foundation law function before it was written?
In Anglo-American legal tradition, an explicit enumeration of included elements is an implicit exclusion of anything else. This is contrary to common sense, where if you say my grocery purchase includes apples and oranges, you might also be buying bread. Not so in law. If you write a list that includes apples and oranges, there is nothing else; that is the entirety of the list.
When the Constitution explicitly enumerates the powers of the government, it is saying that these things are the only things this government is allowed to do. In practice, the government found the vaguest and broadest enumerated power, and cites it as its justification for everything else that it does.
With the Bill of Rights, the 9th and 10th were inserted to allay those fears. Read the 9th again: The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people. That is an explicit reversal of the general legal principle that an enumeration is a complete list. Otherwise, it would indeed mean that the people have no other rights beyond what were enumerated.
So it is both enabling and limiting. The two are not mutually exclusive. But as the 9th amendment shows, there was a default assumption in place that requires the 9th to be inserted to explicitly contradict. Those people that argue that it is an exhaustive enumeration are most likely correct. But de jure and de facto exercises of power are sometimes different.
If you enumerate a power that says "...and anything else the Congress decides to do", then there is no limitation. The government doesn't even need to bother with the enumerated powers. Just throw everything into the catchall clause, even if it could be justified elsewhere, just to save time. And that's what the interstate commerce clause has become. An overly broad interpretation of that one power renders the remainder of the document largely irrelevant.
That's why the Bill of Rights was necessary. The Antifederalists thought (correctly) that the federal government would grow well beyond its initial limitations. Madison was aware of their arguments, so in addition to the whitelist of enumerated powers, there had to also be a blacklist of enumerated prohibitions. And it had an explicit declaration of "plus other stuff we didn't explicitly list here".
It should be a stark contrast. The main body of the document was written by and for optimistic Federalists. The Bill of Rights was written as a failsafe mechanism to address the concerns of the Anti-Federalist opposition, for when the original document inevitably failed to contain the unrestrained exercise of government power. Some people predicted before the thing was even signed that it would fail at its weakest point, which just happened to be the interstate commerce clause (but if it wasn't that, it would have just been something else).
The fact that we are now operating largely on the failsafe backup mechanism is a concern. We have no backup for the backup. The smart thing to do, rather than argue about the right to bear arms for illegal immigrants, is to patch the original point of failure. Fix the interstate commerce clause to make it more painful to use as a catchall, or repeal it entirely.
Correct. US v. Portillo-Munoz is on point and relies on exactly this argument, although there's an interesting partial dissent invoking Plyler, and we might observe that in the current case the Court has found no difficulty in extending 4th amendment protections to Mr Vargas notwithstanding his unlawful presence. I have my doubts about Heller but I got so sick of gun control arguments a few years ago that I stopped following those cases closely.
It's not a slam dunk. The second amendment reads:
> A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed."
Who are "the people?" In the Preamble to the Constitution, the phrase "the people" clearly refers to the political community creating the new government, which arguably excludes illegal aliens. The Supreme Court in Heller v. District of Columbia construed "the people" in a way that is consistent with that use, and which lower courts have taken to mean that illegal aliens don't have second amendment rights.
However, the bill of rights uses "the people" to refer to the first amendment right to peaceably assemble, and the fourth amendment right to be protected against unlawful search and seizure. If "the people" is interpreted consistently for all the amendments, that implies that illegal aliens don't have several rights under the bill of rights, which is problematic.
See: http://scholarlycommons.law.northwestern.edu/cgi/viewcontent....