Circuit Court Overextends on Second Amendment

By Dan Cadman on August 31, 2015

In June of this year, a three-judge panel of the Seventh Circuit Court of Appeals ruled in the case of an illegal alien who had appealed his conviction on a federal firearms offense for possessing a bullet. (There is evidence he also had the gun itself in his possession earlier in the evening of his arrest, though it wasn't on him when taken into custody.) As a convicted aggravated felon, he was deported with a lifetime bar on reentry. The panel ruled his appeal of the conviction was not moot because, if overturned, the lifetime bar would no longer apply.

The conviction was upheld, but the reasoning of the chief judge in affirming the conviction is disturbing. First, she held that the Second Amendment (which speaks to the right to keep and bear arms) applies to all individuals in the United States, including illegal aliens; but then she went on to say that the federal government nonetheless had within its power the ability regulate that right away for certain individuals.

Postulating that even illegal aliens have the right to keep and bear arms is a view with which I suspect even the National Rifle Association would strongly disagree. While all individuals in the United States are protected by the Constitution to a greater or lesser degree, it is beyond dispute that there is a hierarchy to the levels of protection and the rights accorded to individuals based on their citizenship status.

  • At the top of the hierarchy are United States citizens, both native-born and naturalized, the only distinction being the one imposed by the Constitution that only native-born citizens may be president.

  • Citizens are followed closely by lawful permanent residents (LPRs), who enjoy almost the same panoply of protections although they do not possess the right to vote and are subject to deportation should they commit certain offenses.

  • Next in the hierarchy are asylees and refugees, who don't possess the full panoply of protections accorded to LPRs, but are nonetheless understood to be able to live and work where they wish permanently in the United States; again, though, subject to the obligation to comply with all laws or risk being stripped of status.

  • Then come nonimmigrants (people in the U.S. some sort of temporary visa), who enjoy a significantly lesser level of protection, but one that is dependent on not having overstayed or otherwise violated the terms of admission, in which case they are in fact and in law illegal aliens.

  • At the bottom of the protectional hierarchy of the Constitution are aliens living illegally in the United States, who, although enjoying a limited right to due process, are nonetheless subject to arrest and removal simply by virtue of their unlawful presence.

What the Second Amendment says is this: "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 judges' decision appears to translate the language of the amendment into a universal declaration of brotherhood for constitutional purposes, where possession of weapons is concerned. I don't believe such a conclusion is either necessary or logical. Many observers of constitutional history note that the origins of the Second Amendment arise from our founders' distrust of a powerful and overweening central government, and the possibility of tyranny. For instance, in his "History of the Second Amendment", David Vandercoy, a professor of law, approvingly citing others, says:

Eighteenth-century commentators frequently discussed the evils of standing armies. Blackstone observed that professional soldiers endangered liberty. In free states, the defense of the realm was considered best left to citizens who took up arms only when necessary and who returned to their communities and occupations when the danger passed. Standing armies were viewed as instruments of fear intended to preserve the prince.

If this assessment is true, and I think that it is — certainly our origins as a country are based on rebellion against a tyrannical monarch — then the "people" who have a deep and constitutionally vested interest in ensuring that the nation and society in which they live conform to the standards of liberty and representative government laid out in other portions of the constitution, by possessing the right to bear arms, are the citizenry — not illegal aliens whose very presence is a violation of law.

The Seventh Circuit decision, which would afford illegal aliens some vague Second Amendment right on one hand, while at the same time authorizing its constriction or removal with the other, appears to me to be illogical overreach, and an unnecessary conclusion even for one of a strict constructionist bent.

It seems a more reasonable approach to read the phrase contextually, which leads us to the conclusion that "the people" the Second Amendment refers to are the very same as those who are laid out as the declarers and possessors of the constitution in its very preamble: "We the people of the United States ..."

Taking any other position is to begin an unthinking slide into believing that the creators of our Constitution also intended to flatten the hierarchical levels of protection between citizen and foreigner and to treat everyone, including illegal aliens, in exactly the same manner without regard to the issue at hand. If that were the case, the very Constitution that established us as a sovereign nation would be laying the seeds of our undoing by eliminating the critical distinction between citizens and aliens, thus surrendering to others the decision as to whether to permit our right to exist as a distinct people.