http://www.breitbart.com/big-government/2015/08/30/appeals-court-illegal-aliens-have-ri...

Appeals Court: Illegal Aliens Have Right to Own Guns

by Ken Klukowski30 Aug 2015Washington, D.C.0

Illegal aliens can now claim Second Amendment rights to own guns in violation of federal law, according to a federal appeals court that completely ignored the primary reason for the right to bear arms: to give Americans citizens the right to remove a tyrannical regime from power.

Mariano Meza-Rodriguez is an illegal alien from Mexico who was carrying ammunition for a .22-caliber firearm when he was arrested in 2013. He has been here since his parents brought him around age five. But federal law, found at 18 U.S.C. § 922(g)(5), makes it a crime for an illegal alien to have a gun. He was convicted, sentenced to time served, then deported to Mexico. He is appealing the federal district court’s decision not to dismiss his indictment that led to his conviction.

The Second Amendment provides that “the right of the people to keep and bear Arms, shall not be infringed.” In a seminal 2008 case, the Supreme Court held in District of Columbia v. Heller that the Second Amendment secures an individual right to keep and bear arms. On August 20, 2015, Chief Judge Diane Wood (a liberal appointee of Bill Clinton who was on Barack Obama’s short-list for the Supreme Court) wrote for a three-judge panel of the U.S. Court of Appeals for the Seventh Circuit that the panel could “see no principled way to carve out the Second Amendment and say that [illegal aliens] are excluded” from exercising Second Amendment rights.

The court’s opinion admitted, “some of Heller’s language does link Second Amendment rights with the notions of ‘law-abiding citizens’ and ‘members of the political community.’” But then the court incorrectly claims that Heller also “supports the opposite result: that all people, including non-U.S. citizens, whether or not they are authorized to be in the country, enjoy at least some rights under the Second Amendment.” The Seventh Circuit noted that three other federal appeals courts have said that illegal aliens do not have Second Amendment rights, but concluded that those courts were wrong, creating what lawyers call a “circuit split” by holding that § 922(g)(5) is unconstitutional.

But the court went on to sustain the indictment that led to Meza-Rodriguez’s conviction, with an analysis that’s bad news for gun owners. Chief Judge Wood wrote that while illegal aliens are entitled to Second Amendment rights, gun restrictions such as this one should only be subject to what courts call “intermediate scrutiny,” under which the court can uphold this statute, but also uphold a great many additional restrictions on the right to bear arms.

It’s true that the Supreme Court has noted that the term “the people” also shows up in the First and Fourth Amendments, and that Heller noted that gun rights were in some ways similar to free-speech rights. (In fact, I authored a legal scholarly work, “Making Second Amendment Law with First Amendment Rules,” published by Nebraska Law Review, that explains the relationship between these two parts of the Constitution’s Bill of Rights.)

But as the Seventh Circuit admitted, other uses of “the people” in the Constitution—such as Article I, Section 2’s provision that members of Congress shall be elected every two years “by the People of the several States,” and the Seventeenth Amendment’s provision that senators will be elected in each state “by the People thereof”—clearly refer only to voting citizens, though even then the court tries to maintain some wiggle room by saying this is only “likely.”

Even cases where the Supreme Court has interpreted “the people” differently do not support the Seventh Circuit’s interpretation. For example, in U.S. v. Verdugo-Urquidez, the High Court held that “the people” in the Bill of Rights includes only noncitizens who have “developed a sufficient connection with this country to be considered part of [the national] community,” such as permanent legal residents. The Court specifically contrasted the foreigner in that case from illegal aliens, saying that legal residents such as Mr. Verdugo-Urquidez “were in the United States voluntarily and had accepted some societal obligations.”

This panel could have chosen between two meanings of “the people”: one referring only to American citizens, and the other also including some (but not all) noncitizens. It freely chose to reject the argument that the right to bear arms is a special right that the Constitution promises to citizens eligible to vote. And the court also invoked one of the two wrongheaded decisions at the heart of the birthright citizenship immigration debate—Plyler v. Doe—where liberal Justice William Brennan slipped into a footnote in a 5-4 decision a nonbinding comment that states have no rational basis for treating legal aliens differently from illegal aliens.

The Chicago-based appeals court concluded, “No language in the Amendment supports such a conclusion, nor, as we have said, does a broader consideration of the Bill of Rights.”

The court is wrong. The Declaration of Independence says that in order to be legitimate, government must be by the consent of the governed, and that when the people of a nation withdraw their consent, the people have the right to “alter or abolish” that government.

The Constitution designed America’s democratic republican form of government to incorporate these principles. (Censored word) citizens of this country have a fundamental right to vote, and this is the means by which citizens express their consent to be governed by certain people for a certain time. Then during the next election, those citizens again have the right to use their vote to withdraw their consent, and to alter their current government by electing new people.

As discussed in my law review article, the Supreme Court in Heller found that the reason the Second Amendment was written into the Constitution’s Bill of Rights was so that the American people could throw off a tyrannical regime that took power against the vote of the people, and held onto that power through military might. Justice Antonin Scalia wrote for the Supreme Court that “fear that the federal government would disarm the people in order to impose rule through [the military] was pervasive,” and that armed citizens “are better able to resist tyranny.” The right to remove from power such a regime is a power that the Constitution reserves to the voting citizens of this country, not to foreigners, and especially not to foreigners who are not even in this country legally.

This does not mean that foreigners should not be able to own firearms, as I explain both in my Nebraska Law Review work and also in another academic publication, “Citizen Gun Rights.” The Second Amendment secures a right to self-defense, and foreigners in this country—especially permanent lawful residents—have the same human concerns regarding their personal safety and the security of their families, homes, and businesses that any other human being might have. This simply means that Congress and state legislatures can decide when and how a foreigner in this country can have firearms, instead of it being a constitutional guarantee to be decreed by the courts.

The Seventh Circuit’s decision is manifestly wrong for other reasons as well. For one, it casts doubt on the legality of the federal law that says a person must be an (censored word) to purchase a firearm from a store. Political rights—such as the right to vote or the right to serve on a jury—only apply to (censored word) citizens. But personal rights—such as First Amendment rights to free speech or Fourth Amendment rights against unreasonable police searches—can also be claimed and exercised by children. A fourth-grade student has a First Amendment right to pray over her lunch at school or to tell her teacher that her favorite hero is Jesus, but only an insane person would suggest that fourth-grader has a constitutional right to buy a gun.

In conclusion, the Seventh Circuit’s decision is disturbing for two reasons. One, it diminishes the value of American citizenship and muddies the water in multiple areas of law and public policy by ignoring the vital distinction the Constitution makes between (censored word) American citizens as opposed to foreigners (especially illegal aliens). And second, it degrades the Second Amendment into a right that can be regulated far more heavily—and thus carries much less force—than other fundamental rights.

The federal government cannot appeal this decision, because in the end it won its case by affirming the district court’s decision not to dismiss the case against Meza-Rodriguez. So unfortunately, unless this criminal asks the Supreme Court to review his case, this case will stay on the books for some time, working mischief to the Second Amendment rights of law-abiding American citizens.

Ken Klukowski is legal editor for Breitbart News and the author of both “Citizen Gun Rights” and “Making Second Amendment Law with First Amendment Rules.” Follow him on Twitter @kenklukowski.

and buy them as well.

"Legal" aliens that is, with a 'green card' and residency or for hunting or sports.

This ruling simply enlarged the word 'people' to cover everyone. And anyone should have seen this one coming down the pike.

Even illegal aliens have rights protected by the rest of the BOR, all you have to do is research any court case brought against an alien, illegal or not. So this should have not been surprising.

I totally disagree with this assumption. An illegal alien is a criminal, having broken the law upon entering our country through illegal portals. Criminals are forbidden to own guns in this country. A citizen convicted of a crime may petition the court to have their Second Amendment rights restored, but this case involved a non-citizen. This non-citizen has not been convicted until he has exhausted all his appeals. Since he never had the right he cannot ask to have the right restored. It is another example of commies appointed to the court by commies attempting to make law from the bench, rather than enforce law from the bench. This person can not buy a gun legally because he would have to lie on the form or would not pass the background check. Another law broken making another count against him and if he bought the gun from an individual it is still against the law because it is not legal to sell a gun to anyone who could not qualify to get one legally at a gun shop. I always refused sales to illegals at gun shows when I was doing those. Only once did I have one get mad over it and I told him all he had to do to prove me wrong was to produce a green card and I would sell the gun to him, but I was not going to sell him one otherwise. The thing is, of the illegals I use to have to deal with, few could even speak English, but all knew they could not legally buy guns. This judge wrote a decision based on personal opinion, not based on law.

for violating immigration laws.

But not all criminals are forbidden gun possession. Only those convicted of felonies.
And being here illegally at this time isn't, per se, a felony.

And no one in the U.S. is restricted to buying a gun from only a dealer, or a non FFL seller being required to perform a background check.

And, of course, no one is required to sell to anyone that they do not desire to.

I'm not saying that they can't be prosecuted for what they do with that gun.
If they do something that a citizen or legal alien could get charged with, that's fine.

But if a citizen or legal alien does something, and it is not illegal, then just because an illegal alien is doing it shouldn't be illegal as well.

See, if we make the point that the BOR isn't a smorgasbord, like we accuse the liberals of doing, we have to realize that it's all of the BOR. And all those other rights already apply to anyone who is on U.S. soil.

But understand, I'm not for illegal immigration.

Illegal aliens have no rights. If we give them any, we stab every legal alien in the back. Illegals went to the head of the line and cut in. They thumbed their nose at our immigration laws and crashed their way into our society. They can not legally hold a job, vote, apply for assistance, enroll a child in school, have a drivers license, and many things afforded legal aliens and citizens. Many of these laws are being blatantly unenforced upon illegals even though judiciously enforced on us. When the day comes that someone enforces these laws, we will cease to have a problem with illegals.

This is where we'll have to part company. Everyone can have their own opinion, but not their own facts.

The courts started deciding long ago that the rights secured within the BOR extend to anyone within U.S. territory. This includes the 1st, 4th, 5th, 6th, 7th and 8th. Like I said, it was easy for anyone to see that the 2nd was merely waiting in the wings.

They have the same right as anyone else to due process. That process may be nothing more than a bus ride back to the border after they're caught, but.

And some states; Texas and California, maybe some others, issue drivers licenses and I've yet to hear of a public school that doesn't accept them either.

They also have the right to self defense, which some other people even say they don't have.

If, "the right of the people" means anything, it means everyone, not whatever group someone wants to narrowly define.

You see, that's the same argument the anti-gunners use. They want rights to be a smorgasbord that they can pick the ones they like and disregard any they don't like.
The definition of 'the people' changes from one amendment to another to suit their viewpoint and for years we've been saying: No, 'the people' means the same thing in every amendment.

Are we going to do the same?

As bad as it may seem, I say if it's sauce for the goose, it's sauce for the gander.

If you're not going to accept that everyone within the U.S has the same protections the BOR provides, we have a difference that has only one resolution.

I didn't say I particularly liked it. I'm not saying that we can't identify them, round them up and send them back from wherever they came from. Nor am I saying that we can't do whatever is necessary to secure our borders.

What I am saying is that having the viewpoint that a group of people have no rights simply because of their general status has a history behind it. Everyone needs to review that history and the lessons learned.

inalienable rights...." as Jefferson, et. al put it.

I will just have to agree to disagree. I believe those things are for people here legally. To twist the use the BOR to claim they have rights just because they managed to physically show up on U.S. soil, no matter how that happened, is twisting the intent of the BOR. They can go have their inalienable rights in their own country if they are willing to earn them and most of us would die helping them. But they do not have any right to stay here just because they managed to sneak in here. Nor do I believe they have a right to hold a job here,To educate their kids here, to draw assistance here, or any of the things that make them such a drag on our existence. If we don't stop them we will not exist at some point in the future.

While we are discussing RIGHTS, I would like to point out that rights are limited. I have a right to buy and own a gun, but if I try to buy one or own one illegally , I will be put into prison. I have the right to pursuit of happiness. If what makes me happy is to play music over an audio system that blasts it into my neighbors space and in doing so I step all over his right to peace, my right to blast that music ends. Our rights are limited to the point at which we step over a line that effects our fellow Americans. At that point we no longer have a right to exercise that right. Illegals do not pass go, they have no right to collet the $100 dollars, they go straight to jail. why? They stepped on my rights by threatening my national security by coming here illegally. They step on my rights by consuming goods and services meant to provided for elderly and infirmed citizens. They step on my rights by using the education system I pay high taxes to maintain. So, It may not be "Politically Correct" to speak up about such things, but it is time to say something about this lunacy. Illegals rights? Balderdash!!!

I figured the lively debate was finished but, even though you're one of the handful in the country who have a problem with this, here we go.

So why do I bother?

It's because when I previously posted that the lessons from history are being forgotten, I neglected to add that the probable reason is that they're not being taught.

That's one of the faults of our education system.

People today are generally ignorant because ignorant people are easier to control.

So:

You are correct in one aspect. One's person 'rights' ends where it intersects another person's 'rights'.
So how does another person owning a gun, or anything else, intersect your rights until they perform some action?

Answer: It doesn't. You just don't like it.

Simply because you don't like it isn't reason enough. Lots of people don't like anyone (other than government) to possess a gun. And these same people don't like some of the rest of the rights we use, and cherish so highly. You're in the same boat paddling the same direction whether you realize it or not.

When you make a blanket statement that a group of people have "no rights" you fall into a trap of the collectivist's and totalitarian's making.

The rest of your arguments and reasons fall by the wayside until that particular point is dealt with. Nothing else you say, or point out, matters in the slightest once you went there.

Here's the lesson.

Not all that long ago, the political party in control of a country's government decided that a group of people had "no rights". No right to property. No right to freedom. Nothing. They had an agenda; Total Control, and they got it.

The head of the government used a supposed personal animosity to gain political power over the people. The country was in financial and civil trouble similar as we are today and he used his personal charisma to mesmerize the people, blaming and marginalizing the group for the country's problems.

The people sucked it right up without a second thought.

It also helped when the national media saw a source of personal profit and decided to throw in with the government as it's propaganda outlet.

If it was that easy to do it to one group, and it was, it's easy to do it to another.
For if today you say some group has "no rights", some other group one day may say you have "no rights" as well.

You see, there's people here in the U.S., TODAY, who look at US (the pro-gun, pro-freedom, pro-liberty, pro-civil rights people) and want to do that to us.

We call them out in the public domain on their ideas and their rhetoric and their actions and say "You're wrong and here's why.".

But when you use the same type of argumentation used at US, towards someone else, you have no recourse when they point their fingers at you and shout 'hypocrite'.

What some people don't realize is that they're being fed an agenda.

I'll end with some quotes, and they're recent, not from the founders.

Liberty is an inherently offensive lifestyle. Living in a free society guarantees that each one of us will see our most cherished principles and beliefs questioned and in some cases mocked. That psychic discomfort is the price we pay for basic civic peace. It's worth it. It's a pragmatic principle. Defend everyone else's rights, because if you don't there is no one to defend yours. -- MaxedOutMama

The Smallest Minority on earth is the individual. Those who deny individual rights cannot claim to be defenders of minorities. -- Ayn Rand (emphasis mine for both)

Thank you. Well articulated.

Miles, Thank you for discussing this with me, because you understand it is a discussion and not an argument. I feel the same way you do on many of the points you brought out especially the last one. This being the internet it is hard to have these discussion especially when one statement can be pulled out to try to make everything else look invalid. I do not agree that one statement makes everything else invalid, but many do think that way. When I originally posted on the subject I was disagreeing with the stance the judge took. Since my post followed yours, I believe you took it that I was disagreeing with what you wrote. That wasn't the case and I should have said so. I apologize for not doing that. I agree with you on the things that matter, on the rest I will have to agree to disagree. I am fiercely loyal to this country and way too close to the illegal alien problem to not see the damage it is doing.
As to the point of Illegal aliens having guns, there are two points I would like to make. One,I am not willing to break the law to sell them a gun. Two, By their own admission I know that a lot of the guns illegals buy at gun shows are not for individual ownership. They are taken back to the country of origin and sold for a big profit to people having the cash to afford them. These people that buy guns at gun shows a lot of times will come to a table in groups of up to seven people and pool their money to buy a gun then smuggle it out of the country. When these guns end up in illicit hands, mainly thugs and gang(cartel)member hands then we are blamed for the results. I am not so blind as to be a party to those dealings and will refuse to condone it just because the anti-gun people try to twist it around to use against us.
I believe there is a vast difference between a person who comes here illegally and one who is here legally. What happened to the Japanese was a horrendous violation of their rights as they were neither, they were American citizens. Also the illegal aliens in this country encompass Asians, Hispanic, Caucasians, Black, and other races of people. I believe none of those individuals have a right to be here until they come in through our very liberal legal portals. There are always exception to any rule and in this case I believe the exception deals with those foreign individuals the American government representatives have promised to protect or give citizenship because of their service to our country. Otherwise, I still believe if you do not have the right to be here, you can not hide behind our BOR to reap any benefits of being here. I think that is the main point we disagree on. Do I see the point you making? Yes! They are good points. I just do not believe they apply to this particular situation. I do not believe the founding fathers would have condoned the illegal immigration we are dealing with now if they were to come back today and see this situation. If I ever see evidence that tells me otherwise I am willing change my belief to be in alignment with that evidence.

or give them anything extra.

Like I previously said. I see no problem with identifying them and giving them the due process of a school bus ride with an MRE and a couple of quarts of water a day until they're back across the border.

I have no problem with border control strong enough to make the prospect of successful entry so unlikely that most everybody just stops.

I have no problem with locking one up for a long time if they decide to do something stupid or even more 'definitive' if they do something a bit more spectacular.

I don't even like this 'anchor baby' deal.

And I never said that I liked illegals possessing arms.

If they are gun running (either direction), smuggling or commit a crime that would get anyone of us jacked up by the authorities? Prosecute them, just like any one of us would be.

But don't say somebody has 'no rights' and expect it to stand unopposed.

Last point.

Your reference from history is accurate, but there was a worse one that was overlooked by the world until it became impossible to overlook any more.

The example was what happened to the Jews, Gypsies, and others in Germany and it's occupied areas. That's how bad it can get, just from saying 'no rights'.

Your point is taken. My bad. I can join you in that belief.

Rights are God given and can not (should not) be taken away by anyone.

Using your blaring music theory. I live in the country and have neighbors within ear shot of my place. Are you saying I shouldn't be able to shoot guns on my property if the noise disturbs the neighbors? That is a slippery slope.