Eugene Volokh discusses the topic. I would imagine that, if the second amendment is to be a fundamental right, that all people lawfully in the United States would have a right to keep and bear arms. But could Congress regulate foreign nationals coming to the United States, purchasing firearms, and taking them back home?
10 thoughts on “Second Amendment As Applied to Aliens?”
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As, opposed to them coming here, buying plastic statues of Booker T. Washington, and taking them home? What’s the difference?
It’s not like they’re going to A) more than likely be allowed to have them in their country of residence or B) use them against us. I mean, if other countries have to purchase arms by sending in their units as “tourists” then they’re pretty screwed anyways.
And yes, fundamental rights should not be squashed.
I’m with Robb, although Congress trying to regulate firearms purchases by foreign visitors is a much smaller stretch of the “commerce clause” than some that Congress has pulled, so I would be more surprised by Congress not passing such laws than I would by them doing so.
since the purchases would be happening on U.S. soil, certainly congress could. but it likely wouldn’t have to; almost no countries will allow private citizens to import weaponry from abroad for private use anyway.
“.. that all people lawfully in the United States would have a right to keep and bear arms.” Sounds like the result of sloppy language usage affecting thinking to me.
All people are born with certain inalienable rights. However, “The People” of the United States have a government that is itself to be governed by that document that says in effect, and literally in some places, that “The Rights of The People” in some part are to be protected against Government transgressions. Other people *visiting* this country may be extended privileges since we would like to be good hosts that understand hospitality. But I do not believe that our Constitution requires us to protect the rights of guests. We choose to do so because we believe that it is the right thing to do.
If the founding fathers wanted to protect everyone’s rights then wouldn’t the 2nd amendment have been worded as: A well regulated Militia, being necessary to the security of a free State, the right of all people to keep and bear Arms, shall not be infringed. (note that people is changed to lower case.)
MichaelG
unashamably a SNBI type
Regulating arms exports, since it’s international trade, seems to be firmly within Congress’ power, and does not in any case infringe on a right to keep and bear arms in the United States and its territories.
So, yes, Congress could totally regulate that, even Constitutionally.
Michaelg: Most likely it’s not an issue of the intent of the Founders, but that the question was not significant enough to be worth worrying about.
(Perhaps along the same lines that they didn’t mention a right to self-defense in the Second Amendment, because not even the British had tried to deny a right of self-defense to anyone; it was almost beyond question that the People had such a right individually (as they openly did under Common Law, as Blackstone said.
If it had occurred to the Founders that the right to self defense was going to be seriously questioned 150 years later, doubtless the wording would have been altered, from what I can tell from the period documents and discussion.
Similarly, I doubt they had any agenda to exclude foreign nationals who were lawfully in the country, and engaged in lawful activity [rather than fomenting revolution in the service of a foreign power] from being armed by excluding them from the Amendment.)
I count myself as one of the SNBI, but aliens whether legal or not, absolutely are a class that can be regulated. Immigrants that have come here to become residents, i.e. citizens, are something else.
How do we tell them apart? Not my job. That’s why we have a State Department [spit].
I will have to go with the self-evident truth that ALL men are created equal, and endowed by their Creator with certain unalienable rights.
If the understanding of the Founders was that was that only the people of the 13 states, who were previously British subjects, were endowed by God with rights, then I could understand debating the issue. If they are here legally, then they should enjoy their God-given rights, unhindered. Of course, it would be nice if we could do that as citizens, too!
Unhhhh… “Asked and answered,” yer Honor; aliens legally resident within a State are already not barred by the Feds from buying guns. Taking them home, well, that’s a matter for their home country to decide, isn’t it? Certainly the revolver a far-East eatery owner takes back to her birth country by sheer oversight (this really happened and as she put it, “I looked at that .38 in my purse and thought, ‘There’s no way I’m going to be able to take this back with me.'”) is even less my business than it ever was
I do believe their is a difference between a citizen, a permanent resident, a foreign visitor and an illegal alien.
1. I believe that both the citizen and permanent resident should be treated similarly and be allowed to own and possess firearms.
2. As for a foreign visitor purchasing firearms. I am less inclined, we cannot do easy background checks on them. Perhaps if we had a treaty of respect with said visitor’s nation we might have a reciprocity agreement. But the fact that I am currently not even allowed to go from state to state with possession of my firearms except to travel thru or stop at certain places leaves me to think no foreigner should have more rights than me.
3. I believe it should be illegal for an illegal alien to possess a firearm. Call it possession of firearm in the midst of a crime. Illegal entry. Hence it is automatically suspect.
Jason, great point.
How can you do a background check? You can’t. So purchasing, as of right now, is out of the question (I’d prefer to see the background check abolished – if you’re not allowed to purchase a gun, you shouldn’t be on the streets to begin with).
Walking around with a gun they brought in? No problem in my book. However, that would be a rarity.