2A Community Divided Over Gun Rights for Illegals

Townhall Media

My colleague Tom Knighton has already covered the decision by a federal judge declaring that the feds should not have prosecuted an an illegal immigrant for possessing a firearm, but the decision by U.S. District Judge Sharon Johnson Coleman continues to be a hot topic of debate in 2A circles. That's why we're delving into the topic on today's Bearing Arms Cam & Co with a closer look at the arguments in favor and opposed to Coleman's ruling. 


Over at the Reload, attorneys Matthew Larosiere and Kostas Moros provided a great point/counterpoint on the topic, but the two positions can also be summed up pretty well in responses to this post on X from the Firearm Policy Coalition's Rob Romano. 

I was surprised to see that the Dorr Brothers' AFA, which bills itself as a "no compromise" 2A organization, found Coleman's ruling to be "outrageous". The Second Amendment doesn't refer to a "right of the citizens" to keep and bear arms, after all, but "the people." So, are people in this country illegally part of "the people" who possess that right to own and carry a firearm? 

One of the reasons I wanted to talk about this on today's show is that neither of those positions are unreasonable to me, at least at first glance, even though they're fundamentally at odds with each other. Why should someone in this country illegally be considered a part of "the people" or "the political community"? Conversely, why should a natural right like the right to armed self-defense be recognized only for "law-abiding" citizens?


Kostas Moros did a pretty good job of laying out why the natural rights argument makes sense philosophically but still faces hurdles in courtrooms. 

In discussing the extent of the Second Amendment’s application, it’s important to first understand the distinction between that amendment and the natural right to keep and bear arms it was born out of. In natural rights philosophy, self-defense is the first law of nature. It is inherent to all people, and can only be morally restricted if an individual has demonstrated that they are dangerous to others without justification. Like any other person, an illegal immigrant has the natural right of self-defense and, therefore, by necessity in the modern age, the right to keep and bear arms. 

The Second Amendment, by contrast, is an attempted codification of that preexisting right. It’s “inspired by” it, but it comes with its own historical context, limitations, and idiosyncrasies. Given that, we should not be surprised when the Second Amendment does not reach the expansiveness of its philosophical inspiration. 

And then we pass through yet another filter, which is how modern courts interpret this amendment. The historical test that New York State Rifle & Pistol Association v. Bruen reaffirmed and strengthened is much truer to our historical tradition than much of the Supreme Court’s other jurisprudence, which places the focus on interest balancing instead of history. But we certainly can’t assume that even the Supreme Court will interpret the history the exact same way the founders would have, even if they are making more of a good-faith effort than ever before.  

The test of Bruen is thus two steps removed from the natural right to keep and bear arms, and it’s that test, not the aspirational natural right, that is relevant to us in analyzing whether illegal immigrants have a Second Amendment right to keep and bear arms. The answer is probably not. That’s because, while they are certainly people, they are not members of “the People” as modern Supreme Court jurisprudence understands that term. 


As Larosiere points out, however, the position that the Court has adopted inevitably leads to treating the Second Amendment as a second-class right; something the Court has also said is a no-no.

I see no way the “political community” dicta in Heller was intended to reverse hundreds of years of precedent where every other right of “the people” was respected within the borders of the United States without regard to whether the individual victim of state action was able to vote.

Further undermining the argument of my dear friends is the text of the Fourteenth Amendment, through which the Second is enforced against the states. In no uncertain terms, the Fourteenth Amendment refers to “the privileges or immunities of citizens,” then the “liberty” of “persons,” and the equal protection of laws of “any person within its jurisdiction.”

The point bears emphasis: to find that illegal immigrants are outside of “the people” protected by the Second Amendment, you must believe that the Framers were talking about a different “people” in the First, Fourth, Ninth, and Tenth Amendments.

The courts have previously determined that Illegal immigrants do possess a Fourth Amendment right protecting them from "unreasonable" searches, as well as a Fifth Amendment right to due process. The Supreme Court's jurisprudence is a little murkier when it comes to the First Amendment, but there's certainly no federal statute barring those in this country illegally from attending church on Sunday or engaging in a public protest.  


If that's the case, then why should someone in this country illegally be charged with a crime simply for possessing a firearm? 

From a pure 2A perspective, Larosiere is right. But as Moros accurately points out, the judiciary isn't looking at gun control laws from a purist's point of view. The Supreme Court has found that "shall issue" licensing laws are presumptively constitutional, for instance, even though the Second Amendment says nothing at all about the State giving permission to exercise our right to bear arms. 

If we're going to put the Second Amendment on the same footing as the First, Fourth, Fifth, or any other enumerated amendments then there's a very strong case that even those in this country illegally have the right to keep and bear arms. Unfortunately, despite the Supreme Court's assertion that the Second Amendment is not a “a second-class right, subject to an entirely different body of rules than the other Bill of Rights guarantees," in some ways that's exactly how it's still being treated, even by the highest court in the land. If the Court maintains that the right to keep and bear arms is only guaranteed to members of the "political community" and not "the people" at large, then Judge Coleman's ruling is likely to remain an outlier... and will probably be overturned by the Seventh Circuit Court of Appeals in the near future. 

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