Non-Residents and Gun Rights in America
Is the Right to Keep and Bear Arms a Natural Right, or an American Privilege?
In the discourse surrounding the Second Amendment and its embodiment of the right to keep and bear arms, a foundational principle often invoked is the notion of a "God-given" or natural right to self-defense. This principle posits that the right to protect oneself, one’s family, and one’s property is intrinsic to human nature, transcending legal and governmental constructs.
Such a perspective holds that the right to self-defense, and by logical extension, the right to access the means of effective self-defense, is not granted by governments but recognized by them as pre-existing their own establishment. This acknowledgment of natural rights is central to the philosophical underpinnings of the United States Constitution, which seeks not to bestow these rights upon its people but to safeguard them against infringement.
However, the application of this principle raises profound questions about the scope of Second Amendment protections, particularly regarding the extent to which these protections apply to individuals based on their citizenship status.
A tension arises between the universalist notion of natural rights, which would ostensibly apply to all human beings irrespective of their geographic status, and a more restrictive interpretation that confines these rights to American citizens and permanent residents.
This dichotomy invites scrutiny into the intellectual consistency of asserting a universal, "God-given" (or natural) right to self-defense while simultaneously contending that such a right is circumscribed by national boundaries and legal designations of citizenship.
A recent federal court decision1 has reignited the debate over the scope of the Second Amendment, particularly its application to undocumented immigrants. This ruling challenges the longstanding federal prohibition against undocumented immigrants possessing firearms, suggesting a broader interpretation of "the people" protected under the Second Amendment. This perspective aligns with a more inclusive understanding of constitutional rights, one that acknowledges the complexities of modern immigration and the varied legal statuses of individuals residing in the United States.
The case centered on Heriberto Carbajal-Flores, who faced charges for possessing a semi-automatic pistol in Chicago. The federal statute in question, 18 U.S.C. § 922(g)(5), prohibits undocumented immigrants from carrying guns or ammunition. However, in a significant departure from previous interpretations, the court found this statute to be in violation of the Second Amendment as it applies to Carbajal-Flores. This decision was influenced the precedent-setting 2022 Supreme Court ruling in Bruen2, which affirmed that the Second Amendment "presumptively protects" activities explicitly mentioned in its text and that regulations must align with historical firearm regulation traditions.
The debate stemming from this ruling focuses on the definition of "the people" within the context of the Second Amendment. While some argue that this term exclusively refers to U.S. citizens and permanent residents, this recent ruling suggests a broader interpretation, encompassing all individuals residing in the country, including undocumented immigrants. This interpretation challenges the notion that constitutional rights are limited to members of the political community, as traditionally defined, and instead posits that rights extend to all persons within U.S. borders.
Historically, the term "the people" has been interpreted to include a wide range of individuals residing in the country, regardless of their citizenship status. At the time of the Constitution’s ratification, the distinction between citizens and non-citizens was far less defined than it is today, with early militia acts mandating armament based on able-bodiedness rather than citizenship. This historical context supports a broader interpretation of "the people," one that includes undocumented immigrants.
Moreover, this broader interpretation is supported by the text of the Fourteenth Amendment, which underscores the rights of "persons" within the jurisdiction of the United States, further blurring the lines between citizens and non-citizens in the context of constitutional rights. This perspective suggests that fundamental rights, including those protected by the Second Amendment, should not be withheld based on immigration status alone.
The ruling also prompts a reevaluation of what constitutes the "political community" and how this concept applies to constitutional protections. By adopting a more inclusive definition of "the people," the court challenges the idea that undocumented immigrants are categorically excluded from Second Amendment protections, instead suggesting that all individuals residing in the United States are entitled to its protections.
It is important to acknowledge that not all non-resident immigrants residing in the United States are present unlawfully. Specifically, refugees and asylum seekers hold a legal status that permits them to remain in the country while their immigration cases are being adjudicated. The process of determining the outcome of their immigration status is often protracted, currently extending over several years,3 during which these individuals are lawfully allowed to live within the U.S. borders.
This decision not only highlights the evolving nature of legal interpretations but also underscores the necessity of considering the complexities of modern society and the realities of immigration when defining the scope of constitutional rights.
Is the right to bear arms a universal human right, transcending national boundaries and citizenship status, or is it a privilege exclusively reserved for American citizens and permanent residents? The right to keep and bear arms is either a fundamental human right or a national privilege, it cannot be both.
A legal decision by Judge Sharon Coleman of the U.S. District Court for the Northern District of Illinois in U.S. v. Carbajal-Flores found a federal law, specifically 18 U.S.C. 922(g)(5)(A), which criminalizes firearm possession by undocumented immigrants, to be unconstitutional as applied to the defendant, Heriberto Carbajal-Flores. The ruling has sparked discussions on the implications for the criminal liabilities of aliens and the distinction between the rights of citizens and aliens. Carbajal-Flores, who has been living in the U.S. without lawful immigration status since 2002, was involved in a neighborhood watch during the protests following George Floyd's death. The defendant's engagement in self-defense activities led to his arrest and subsequent legal challenge under the Second Amendment.
New York State Rifle & Pistol Association v. Bruen, 597 U.S. ___ (2022). In this landmark decision, the Supreme Court of the United States affirmed that the Second Amendment "presumptively protects" activities explicitly mentioned in its text, emphasizing that any regulations on the right to keep and bear arms must be in alignment with the United States' historical tradition of firearm regulation. This ruling underscored the importance of the Second Amendment's plain text in guiding the interpretation and application of firearm regulations, setting a precedent for evaluating future gun control laws against the backdrop of historical practices and traditions in the United States.
National Immigration Forum. "Explainer: Asylum Backlogs." January 23, 2024. This explainer details the significant challenges and delays within the U.S. asylum process, emphasizing the extensive backlogs that impact asylum seekers. It elucidates the definition of asylum, the application processes (affirmative and defensive), and the factors contributing to the burgeoning backlogs. Notably, it reports that in fiscal year (FY) 2022, USCIS received a historic high of around 239,000 affirmative asylum applications, with this number dramatically increasing to approximately 454,000 in FY 2023. Moreover, it highlights the waiting times for asylum cases to be heard, which can exceed 6 years for those before USCIS and approximately 4.3 years for cases in front of the Executive Office for Immigration Review (EOIR). The explainer underlines that these delays pose serious justice concerns and outlines the primary reasons for the backlogs, including a global increase in forced migration, staffing and funding shortfalls, and the complexity of asylum petitions amidst an ever-shifting policy landscape.