Illegal Aliens and Natural Rights
posted by Gerard Magliocca
There have some recent federal circuit cases addressing (and rejecting) the proposition that the Second Amendment right identified in Heller applies to illegal aliens. To some extent, these courts and other commentators have tried to work out a broader understanding of what distinguishes the rights held by citizens and legal residents from those of illegal residents. What about the Fourth Amendment, for example?
Perhaps this is the legal historian in me, but this discussion sounds an awful lot like the traditional conversation about what are natural rights vs. rights that come only from positive law. In other words, if a state passed a law saying that illegal immigrants may not worship God as they please, I think we’d all agree that would be unconstitutional. Why? Because presumably we think religious freedom is a natural right (or, if you don’t like that phrase), a really fundamental right. The right to, say, a civil jury trial is not viewed in the same way. Consequently, I wonder if natural rights discourse will make a comeback through these discussions.
December 17, 2012 at 11:45 am
Posted in: Jurisprudence
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Responses (14)
Joe - December 17, 2012 at 12:47 pm
Do you have a few cites of the cases? Did Bingham have anything to say about this?
PrometheeFeu - December 17, 2012 at 2:29 pm
In at least some cases, (many?) the violation of immigration law is a felony. In those cases, the Second Amendment’s historical exception with regard to felons may apply. Also, illegal immigrants are acting illegally by just being there. It may be reasonable to say that bearing arms in the course of performing illegal activity is not protected by the Second Amendment even if the weapon is not used to further the illegal activity. This could be justified on the grounds that those who are acting illegally are more likely to be confronted by LEOs.
Shag from Brookline - December 17, 2012 at 4:33 pm
Isn’t self-defense a natural right? Wouldn’t an illegal alien using a gun for self-defense be protected under the concept of Heller and McDonald? Wouldn’t a felon be entitled to the defense of self-defense using an “illegal gun” even though he might be guilty of illegally owning/possessing a gun? Or is there a “clean hands”/trespass doctrine that negates the availability of self-defense, making an illegal alien fair game?
PrometheeFeu - December 17, 2012 at 4:41 pm
@Shag from Brookline:
McDonald and Heller which both recognized self-defense as an important reason for the Second Amendment also clearly said that felons can still be banned from owning guns. So even if self-defense is a natural right and illegal immigrants are entitled to self-defense, that does not mean that they can own guns.
To answer a question, I think the illegal immigrant may very well be in the same situation as the felon here. They would have a self-defense defense available for using the gun, but they would still be liable for having the gun which is what the OP was focused on.
Gerard Magliocca - December 17, 2012 at 6:22 pm
Bingham did say that citizens and aliens were both entitled to the freedom of speech, though I think that’s the only part of the Bill of Rights (aside from due process) that he discussed in that context.
Eric - December 18, 2012 at 4:43 pm
There is an important textual difference between the First Amendment and the Second Amendment which would justify the differing treatment. The First Amendment states that “Congress shall make no law ….” On the other hand, the Second Amendment protects the right of “the people.” “The people” is a term of art used in the Constitution to refer to a political community. Based on this textual difference, it seems perfectly natural that illegal aliens could be excluded from the Second Amendment right, but not the First. The First Amendment does mention “the people”, but only in relation to the right to peaceably assemble and petition the Government.
Joe - December 18, 2012 at 7:44 pm
Justice Kennedy in United States v. Verdugo-Urquidez noted:
With respect, I submit these words do not detract from its force or its reach. Given the history of our Nation’s concern over warrantless and unreasonable searches, explicit recognition of “the right of the people” to Fourth Amendment protection may be interpreted to underscore the importance of the right, rather than to restrict the category of persons who may assert it.
The idea that 2/5 of the 1A applies differently than the other 3/5 is theoretically possible, but the USSC has not shown a desire to slice things that thin. It didn’t even deal with the complication of DC and federal territories in the Heller ruling after the dissent below rested on it.
Joe - December 18, 2012 at 7:46 pm
but see how the USSC summarily dealt with a case applying the principles of Citizens United to aliens (cite eludes me). So, who knows what it will do?
Kiefer - December 19, 2012 at 3:05 am
Did Bingham have anything to say about this?
Anon - December 19, 2012 at 8:15 am
As a percentage, not that many people who are here without legal status have committed a felony. The biggest category is individuals who have overstayed their visa or who were brought here as a small child. They’ve committed no crime at all. Another big category is people who have entered illegally once, which is a misdemeanor. A third category of individuals — those who illegally entered after being deported, those who illegally entered more than once, and those who lied at the border to gain entry — have committed a felony. But I would guess that one-sixth or less of all individuals in the United States without legal status fall into this last category.
Moreover, I would bet that those without legal status are less likely to encounter law enforcement than other people because they have a rather large incentive to avoid law enforcement.
Also, there was no concept of “illegal alien” at the founding. Asking what the founders would have done, to the extent it is often meaningless tripe, is particularly so in this context. (Of course, the invention of the “felony” exception to owning a firearm at the founding is also made up, so why not extend the fantasy?)
Finally, I don’t see how these conversations have anything to do with natural rights, except to the extent that you can always awkwardly label any conversation about balancing a right against other considerations as a conversation about natural rights.
Ken Arromdee - December 19, 2012 at 2:41 pm
Doesn’t living in the US as an illegal alien usually involve some sort of fraud that can be a felony (fake social security numbers, lying on dopcuments, etc.) even though technically the alien isn’t a felon just by being here?
Jordan J. Paust - December 21, 2012 at 3:23 pm
Eric is correct and in line with the majority ruling and rationale in Verdugo (that the 4th, unlike the 5th and 6th, does not apply to aliens abroad).
However, we should not use the phrase “illegal alien” because no person is “illegal.” What some do is “illegal.” They are undocumented aliens.
Dave Francis - December 24, 2012 at 2:01 pm
The TEA PARTY will not reduce its bombardment of these twin issues, on both the American Public and Congress as a need to enact “THE LEGAL WORKFORCE ACT” ( H.R. 2885), containing the mandatory E-Verify provision. This is an imperative to remove illegal aliens from the workplace and regenerate millions of jobs to U.S. citizens and permanent residents. Nothing difficult about this policy, except that state and federal legislators need to be harshly reminded by the voters that this nation needs to protect its borders and people from further invasion. In conclusion, a far more controversial law is to force the passage of the “BIRTHRIGHT CITIZENSHIP ACT (H.R.140). This exceeds every financial illegal immigration welfare program, as this aspect represents not in the hundreds of millions, but hundreds of Billions of dollars? We are supporting other countries poverty, to the detriment of our taxpayers. These billions of dollars should be supporting our own impoverished, not a free education for the children of illegal alien parents or the growing lines of foreigners arriving in our hospitals with their children. The simple fact of one stroke of the pen, the correct number of votes could alter illegal alien children getting instant citizenship because their parents smuggled them into our country or came here undetected in the womb of a mother. If this amendment to the 14th Amendment is not altered the payout for the “foothold” babies of illegal aliens will go on forever, and the costs doubled and tripled. Skilled workers YES! Poverty NO! And NO Amnesty?
AMERICA DOESN’T HAVE A REVENUE ISSUE, IT HAS A SPENDING ISSUE? PRESIDENT OBAMA GETS HIS VOTES FROM MOSTLY PEOPLE WHO WANT SOMETHING FOR NOTHING, WHILE TAXPAYERS HAVE TO CARRY THE “FREELOADERS”.
BIG PROBLEMS COMING FOR PRESIDENT OBAMA AND THE LIES ABOUT BENGHAZI, SEE THE ROY BECK’S VIDEO AT http://www.teaparty.org/beck-obama-may-go-to-prison-17572/
Joe - December 24, 2012 at 3:40 pm
“does not apply to aliens abroad”
But, we are talking about aliens HERE, so I’m not how far that takes us here.
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