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Illegal Aliens and Natural Rights
Posted By Gerard Magliocca On December 17, 2012 @ 11:45 am In Jurisprudence | 14 Comments
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.
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