ACLU Sues SD over Concealed Carry

[Katygunnut]

I may be slow, but there is a fundamental question that I think I'm missing here.

Does the US Constitution grant rights to only US citizens, or does it also grant rights to people who are not US citizens? If the latter, then exactly who gets US constitutional rights? Do you have to be physically present in the US, or can you get constitutional rights by virtue of being alive (practical considerations of giving US constitutional rights to someone in say North Korea notwithstanding).

I always thought that the US constitution applied only to US citizens and that the framers did not intend for the bill of rights and other provisions to apply to others who were merely located in the US (slaves, British soldiers fighting the war of 1812, Native Americans, etc. etc.). Was I misinformed in my public school education on this point?

This is not a big philosophical problem. The answer is found in the plain wording of the Constitution. It was once an issue, with, for example, James Madison suggesting that non-citizens were not parties to this Constitution -- that they were not members of "We the people of the United States...." who gave birth to the Constitution. He lost, and the Bill of Rights passed in the form we see it today, and the fact that the issue was debated by the framers is "legislative history," if you will, which is not seriously debated any more.

The Bill of Rights speaks in terms of "the people," or "persons." Not having the time to go through the Constitution word by word, nor having time to refer this question to those new members of the House of Representatives who are our new experts on the Constitution, I will stick my neck out and guess that the only "right" not afforded non-citizen residents who are not candidates for national public office is the right to vote. That is, non-citizens are "people," and they are "persons," whether they are legally in the country or not.

For example, "...the right of the people to keep and bear Arms, shall not be infringed." "The right of the people to be secure...." "No person shall be held to answer...." The earlier words of the XIV Amendment have resulted in a little renewed debate on the question, but its last clause settled the debate.

You ask, Katygunnut, another question. "Was I misinformed in my public school education on this point?"

The answer to your question, I'm afraid, is "Yes." I can assure you that you are not the only person so misinformed by teachers who confuse their personal political views of what they think the law ought to be, with what the law really is, and they can cause a whole generation of their students to be misinformed.

Respectfully,

Elmo

My last question was rhetorical in nature. I know that I was misinformed in my public school education.

Interesting history lesson. I'll refrain from a follow-up question because it would be way off topic, and it is probably a useful history lesson for me to look up on my own. This is actually a bit embarassing because I like to think of myself as being pretty knowledgable regarding history in general (including US history).

[RPB]

I started double checking what teachers say after a first grade teacher said "you can't take 3 apples from 2 apples" it's impossible.
Then another teacher later says it is possible "yes you can, and you get (negative) minus one" then the credit card company confirmed what the latter teacher said...but the bank agrees with the first teacher when they started stamping checks "NSF"
(just kidding, but if you can't trust a teacher to not confuse you ...)

[Ameer]

I believe that the question is more a matter of should they restrict the right-to-carry to citizens only - having previously granted it to legal residents as well?

That's a valid question, but I believe it's a question that is properly addressed through the legislative process, not through judicial activism. To put it another way, the court's legitimate authority is whether SD has the legal and constitutional authority to license the right, not what this judge's personal beliefs say they should do.

[chartreuse]

True - but that's not up for debate at this point. The question being argued right now is not whether they have the authority to do so, but whether they should restrict someone's right/privilege/whatever.

Precisely. In law, this isn't a Second Amendment matter, it's a 14th Amendment one.

Here's the NRA take on it: http://www.nraila.org/Legislation/Read.aspx?id=6111

[cbr600]

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[chartreuse]

Precisely. In law, this isn't a Second Amendment matter, it's a 14th Amendment one.

How so? I thought the 14th Amendment said:
"No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States"

Well, if you're going to quote selectively, you can make most things say whatever you want them to say.

On the other hand, if the argument is based on the "nor deny to any person within its jurisdiction the equal protection of the laws" clause applying to gun laws, then the same argument says the state can't impose a residency requirement, and tourists have the right to get a concealed carry license. Even tourists from other countries have that right while they're in a state, if equal protection applies.

Fair play to your attempt at reductio ad absurdum, but there's a shed load of case law that runs contra to your speculation.

I have to ask, what's your agenda here?

[cbr600]

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[baldeagle]

Precisely. In law, this isn't a Second Amendment matter, it's a 14th Amendment one.

How so? I thought the 14th Amendment said:
"No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States"

On the other hand, if the argument is based on the "nor deny to any person within its jurisdiction the equal protection of the laws" clause applying to gun laws, then the same argument says the state can't impose a residency requirement, and tourists have the right to get a concealed carry license. Even tourists from other countries have that right while they're in a state, if equal protection applies.

I disagree with your analysis. Note that the first phrase clearly distinguishes citizens of the United States as those whose "privileges and immunities" cannot be abridged. The latter phrase refers to "any person" and says that they cannot be denied equal protection of the laws". Laws are different from privileges and immunities. In the former case, all the rights and privileges of citizenship are protected. In the latter only equal protection of the laws is contemplated. Tourists visiting the United States would be persons but not citizens and are therefore not guaranteed that the privileges and immunities granted citizens will not be abridged for them.

[cbr600]

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[Bullwhip]

No goverment "grants" rights (but they like to pretend they do). Rights exist just because you're born.

Born in China or live in Baltimore or NYC or Chicago? you have the same RIGHT to guns as any natural-born American citizen. Goverment might deny that irght, but then again goverment denied the right to vote to lots of people at one time. They had the right, it was just denied.

Citizenship rights means being able to vote. Human rights means being able to speak freely, practice religion, carry guns, be free from quartering soldiers, free from unreasonable searches and seizures.....do I have to go on, I ton't think so.

"Wet foot" is the right policy, not just for Cubans but Mexicans and central/south americans too. If you're on American soil you get American protections. period.

[Ameer]

"Wet foot" is the right policy, not just for Cubans but Mexicans and central/south americans too. If you're on American soil you get American protections. period.

I disagree. If an illegal alien makes it across the border, they shouldn't be allowed to stay just because the law didn't catch him in the act of crossing the border. Think about this. If a drunk driver kills a 9 year old girl and flees the scene, he shouldn't be immune to prosecution and civil liability just because the law didn't catch him in the act of killing her.

The Wet-Foot Dry-Foot Policy is bad policy, and so is the nightmare DREAM ACT.

[Bullwhip]

"Wet foot" is the right policy, not just for Cubans but Mexicans and central/south americans too. If you're on American soil you get American protections. period.

I disagree. If an illegal alien makes it across the border, they shouldn't be allowed to stay just because the law didn't catch him in the act of crossing the border. Think about this. If a drunk driver kills a 9 year old girl and flees the scene, he shouldn't be immune to prosecution and civil liability just because the law didn't catch him in the act of killing her.

The Wet-Foot Dry-Foot Policy is bad policy, and so is the nightmare DREAM ACT.

What? That doesn't make sense in context. If you catch someone in the act or just build a case on evidence you can prosecute just the same.

Remember all those times we get reminded the Constitution doesn't grant any rights? We have those rights, the Constitution just says the government won't infringe those specific right. I don't care where your'e born, ever human being has the right to be armed for self defense. Chicago has the same rights as Dallas. Same for China or London. Some goverments infringe that right, like our own does sometimes. You still have the right tho. Just like you have the right to shout down the Chinese goverment in front of a bunch of tanks, but good luck wiht that.You have the right but exercising it is on you.