Does the Second Amendment Protect Non-Citizens? Judge Menashi finds that Heller limited the Second Amendment to "citizens."

[Doug_Nightmare]

Does the Second Amendment Protect Non-Citizens?

The Second Amendment provides "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms,

reason.com

JOSH BLACKMAN | 7.31.2021 2:33 PM
The Second Amendment provides "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." The Framers used the word "people," and not the word "citizen." Does this right apply only to U.S. citizens, or does it apply to all people in the United States? Since Heller, the circuit courts have split on this question. In 2015, I wrote about Judge Wood's Seventh Circuit opinion, which found that aliens were protected by the Second Amendment.
On Thursday, a Second Circuit panel declined to resolve this issue in United States v. Perez. However, Judge Menashi concurred, and found that only citizens are protected by the Second Amendment. This conclusion follows from Heller, which repeatedly used the word "citizen."
[ … ]

 

[KBCraig]

Judge Menashi invoked "at the time of the founding", so he should have spent more time examining what it meant to be a citizen at that time, and what it took to be considered one.

One of the complaints in the Declaration of Independence was that the King would not allow free and unrestricted immigration.

("He has endeavoured to prevent the population of these States; for that purpose obstructing the Laws for Naturalization of Foreigners; refusing to pass others to encourage their migrations hither, and raising the conditions of new Appropriations of Lands.")

Short version: to be a citizen in the eyes of the Founders, was to show up and be American.

Nowhere else is the right of the people guaranteed that it is restricted to citizens.

(Voting doesn't count, because you don't actually have a right to vote; voting rights laws just say that when elections are conducted, the government can't discriminate based on race or sex.)

 

[color of law]

Judge Menashi invoked "at the time of the founding", so he should have spent more time examining what it meant to be a citizen at that time, and what it took to be considered one.

One of the complaints in the Declaration of Independence was that the King would not allow free and unrestricted immigration.

("He has endeavoured to prevent the population of these States; for that purpose obstructing the Laws for Naturalization of Foreigners; refusing to pass others to encourage their migrations hither, and raising the conditions of new Appropriations of Lands.")

Short version: to be a citizen in the eyes of the Founders, was to show up and be American.

Nowhere else is the right of the people guaranteed that it is restricted to citizens.

(Voting doesn't count, because you don't actually have a right to vote; voting rights laws just say that when elections are conducted, the government can't discriminate based on race or sex.)

The court's idea of arguing about the term citizen versus people is a red herring. Regulating immigration did not happen until 94 years after the ratification on the U.S. Constitution. Until immigration being regulated, 1882, the term citizen and people were synonymous.

 

[color of law]

Commerce Clause – Active versus Inactive

After the New Deal, it seemed as if the limits on federal power had been discarded and nearly any federal law could be upheld as an exercise of authority under the Commerce Clause or the Equal Protection Clause of the Fourteenth Amendment. See Wickard v. Filburn, 317 U.S. 111 (1942) (setting the precedent for an expansive reading of the Commerce Clause, and dramatically increasing the regulatory authority of the federal government). This began to change in the mid-1990s with three Supreme Court decisions: United States v. Lopez, 514 U.S. 549 (1995), City of Boerne v. Flores, 521 U.S. 507 (1997), and United States v. Morrison, 529 U.S. 598 (2000). Collectively, these cases signaled the Court’s intent to more narrowly construe congressional powers. More recently, the Court addressed the Commerce Clause in NFIB v. Sebelius, 567 U.S. 519 (2012) regarding the individual mandate in the Affordable Care Act. Focusing on Lopez’s requirement that Congress regulate only commercial activity rather than inactivity, the Court held that the individual mandate could not be enacted under the Commerce Clause, NFIB v. Sebelius, 567 at 558.

In other words, per Lopez the mere possession of a firearm is not a commercial activity, but an inactivity.

Now what does 18 U.S.C. § 922(g)(5) say?

(g) It shall be unlawful for any person—
(5) who, being an alien—
(A) is illegally or unlawfully in the United States; or
(B) except as provided in subsection (Y)(2), has been admitted to the United States under a nonimmigrant visa (as that term is defined in section 101(a)(26) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(26)));
to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.

The first offence of being found guilty for being an alien illegally and unlawfully in the United States is a misdemeanor, not a felony, effectively making 18 U.S.C. § 922(g)(5) unconstitutional.

 

[Firearms Iinstuctor]

I have no problem with any one using firearms legally.

Again instead of going after the real problem. They try and regulate an object instead of the criminals.

Typical communist/socialist move blame the object not the induvial causing the problem .

 

[solus]

sorry the founding fathers refer'd in the preamble 'WE THE PEOPLE' as well as later on mentioned in the same document 'ordained & ratified' of the same document ~ historians who follow the contextual meaning of the time have unequivocally stated the white founding fathers, not woman, natives, negros, etc.

Judge Menashi invoked "at the time of the founding", so he should have spent more time examining what it meant to be a citizen at that time, and what it took to be considered one.

One of the complaints in the Declaration of Independence was that the King would not allow free and unrestricted immigration.

("He has endeavoured to prevent the population of these States; for that purpose obstructing the Laws for Naturalization of Foreigners; refusing to pass others to encourage their migrations hither, and raising the conditions of new Appropriations of Lands.")

Short version: to be a citizen in the eyes of the Founders, was to show up and be American.

Nowhere else is the right of the people guaranteed that it is restricted to citizens.

(Voting doesn't count, because you don't actually have a right to vote; voting rights laws just say that when elections are conducted, the government can't discriminate based on race or sex.)

So sorry kb to be considered a citizen during the founding of this country, WE THE PEOPLE meant you were a white MAN of means...period!

BTW is there a cite to your voting rights law commentary?

uh kb...wondering bout the excitement in February 3, 1870 regarding the ratification of the 15th amendment which states, in part...

The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any state on account of race, color, or previous condition of servitude.

15th Amendment

www.law.cornell.edu

 

[solus]

sidebar...the NRA has no course material in any other language except english nor can aliens be certified in firearm courses. Of course as pointed out, since FFLs can't sell aliens firearms, guess there's no need for the NRA to put their material in another language, such as Spanish, er, uh...

[nypost quote "There are currently 41 million native Spanish speakers living in the US today — and another 11.6 million people who are bilingual..." https://nypost.com/2015/06/29/us-has-more-spanish-speakers-than-spain/]

 

[color of law]

If our founding fathers believed in the Laws of Nature and of Nature's God 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. Then the founding fathers believed the first ten amendment to the constitution (The Bill of Rights) where the basis of Life, Liberty and the pursuit of Happiness.

If true, those fundamentals apply to ALL men, wherever they reside in this world.

 

[KBCraig]

Like the rest of the BoR, the 2nd is a restriction on government. It does not give a right to anyone.

 

[user]

This issue was settled by the U.S.S.Ct. recently when they decided that the word, "person" as used in the Constitution, is not limited to citizens, and "any person" means just that, including foreign states, presumably. This was in the context of the issue of counting non-citizens as "persons resident in the district" for census purposes (the Trump administration opposed it because it gave voting representation to illegal aliens in that it would artifically increase the number of delegates sent to the House of Representatives).

 

[user]

Commerce Clause – Active versus Inactive

After the New Deal, it seemed as if the limits on federal power had been discarded and nearly any federal law could be upheld as an exercise of authority under the Commerce Clause or the Equal Protection Clause of the Fourteenth Amendment. See Wickard v. Filburn, 317 U.S. 111 (1942) (setting the precedent for an expansive reading of the Commerce Clause, and dramatically increasing the regulatory authority of the federal government). This began to change in the mid-1990s with three Supreme Court decisions: United States v. Lopez, 514 U.S. 549 (1995), City of Boerne v. Flores, 521 U.S. 507 (1997), and United States v. Morrison, 529 U.S. 598 (2000). Collectively, these cases signaled the Court’s intent to more narrowly construe congressional powers. More recently, the Court addressed the Commerce Clause in NFIB v. Sebelius, 567 U.S. 519 (2012) regarding the individual mandate in the Affordable Care Act. Focusing on Lopez’s requirement that Congress regulate only commercial activity rather than inactivity, the Court held that the individual mandate could not be enacted under the Commerce Clause, NFIB v. Sebelius, 567 at 558.

In other words, per Lopez the mere possession of a firearm is not a commercial activity, but an inactivity.

Now what does 18 U.S.C. § 922(g)(5) say?

(g) It shall be unlawful for any person—
(5) who, being an alien—
(A) is illegally or unlawfully in the United States; or
(B) except as provided in subsection (Y)(2), has been admitted to the United States under a nonimmigrant visa (as that term is defined in section 101(a)(26) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(26)));
to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.

The first offence of being found guilty for being an alien illegally and unlawfully in the United States is a misdemeanor, not a felony, effectively making 18 U.S.C. § 922(g)(5) unconstitutional.

I take the position that the Second Amendment, being an amendment, changes the meaning of the original text, with the result that the right to keep and bear arms takes precedence over and pre-empts the interstate commerce clause.

 

[color of law]

I take the position that the Second Amendment, being an amendment, changes the meaning of the original text, with the result that the right to keep and bear arms takes precedence over and pre-empts the interstate commerce clause.

You know that and I know that, but SC is not going to void 18 USC chapter 44.

 

[user]

I'm a "constitutional fundamentalist" in the sense that Martin Luther was a "Biblical fundamentalist". Everybody has the right to read and interpret the Constitution for himself. We don't need the high priests to tell us what the document says, as though it were written in Sanskrit. The concepts of precedent and stare decisis really only apply to common law courts, where the judges get to make the law. The S.Ct. only decides cases on an individual basis and the holding of the case is really only applicable to that one case. Precedent is only a guide as to how they're likely to rule in a future case.

This morning, I've been hearing a lot about how "Roe v. Wade has been the law for fifty years". Nonsense, the S.Ct. doesn't make law. If it was the law fifty years ago simply because that Court said it was, then it was already the law, and all they did was apply it. If it was not the law fifty years ago, it still isn't. Their pronouncement didn't make it law.

We as citizens need to hold the government structures' collective feet to the fire. Our problem with the judiciary is that it is seen as a system of mystical processes. I see that as a foolish belief perpetuated by a system that needs to keep the people ignorant in order to promote its own power. The problem with the idea that rational citizens can read and discuss the meaning of the Constitution is the fact that most people are not rational, and are led solely by their emotions. And our political system selects judges on the basis of party credentials, not intellectual honesty.

 

[color of law]

I'm a "constitutional fundamentalist" in the sense that Martin Luther was a "Biblical fundamentalist". Everybody has the right to read and interpret the Constitution for himself. We don't need the high priests to tell us what the document says, as though it were written in Sanskrit. The concepts of precedent and stare decisis really only apply to common law courts, where the judges get to make the law. The S.Ct. only decides cases on an individual basis and the holding of the case is really only applicable to that one case. Precedent is only a guide as to how they're likely to rule in a future case.

This morning, I've been hearing a lot about how "Roe v. Wade has been the law for fifty years". Nonsense, the S.Ct. doesn't make law. If it was the law fifty years ago simply because that Court said it was, then it was already the law, and all they did was apply it. If it was not the law fifty years ago, it still isn't. Their pronouncement didn't make it law.

We as citizens need to hold the government structures' collective feet to the fire. Our problem with the judiciary is that it is seen as a system of mystical processes. I see that as a foolish belief perpetuated by a system that needs to keep the people ignorant in order to promote its own power. The problem with the idea that rational citizens can read and discuss the meaning of the Constitution is the fact that most people are not rational, and are led solely by their emotions. And our political system selects judges on the basis of party credentials, not intellectual honesty.

I agree with you, but what I'm seeing is the courts could care less what higher courts have ruled. I recently had the chief judge tell me that the laws did not apply to them (the Judges). In other words, the judge made clear their immunity permitted them to force a citizen to comply with their illegal acts.

This came about because a court rule conflicted with state law (removing pocket knives from the category of weapons). I was summoned to sit on a grand jury. I asked the judge: if the court is not obligated to comply with the law then wouldn't a juror be free to ignore the law (jury nullification). He said no and I was discharged from jury duty without explanation. The law requires that an explanation to be recorded when a juror is excused from jury duty.

We don't go by that.