Confusing appellate decision re: 2A and illegal aliens

[TimSr]

And yes, a law is not unconstitutional except if and when a court says so.

Hogwash!

Unless the Constitution is changed during the interim, a law is either Constitutional or it is NOT when it it is passed. An unchnaged law cannot "become" Unconstitutional. The Supreme Court only affirms or denies whether it is or not. This is where your constant references to case history is so WRONG, and why banning discussions of Constitutionality until AFTER a court has ruled is about as useful as shooting a fleeing guman in the back AFTER he has killed your family. If this forum is to be useful in protection of the 2nd Amendment, then laws that violate the 2nd Amendment must be called out, brought up and have thoughtful discussion even before they are passed, and certainly after they are passed in order to GET them into the courts where they can be ruled upon. Maybe we would be better served with a separate forum for lawyers to discuss court rulings and case history, and open this one to thoughtful legal discussions and interpretations of proposed laws, and contemporary laws that have yet to be tested in a court of law. Every court case has at least two viewpoints, higher courts reverse lower courts, and most of the major Supreme Court decisions are 5-4, and an internet link does not establish undeniable truth. I'd much rather hear thoughful discussion on the Constitution from the people for whom it was written, than narrowly outlined parameters based on the viewpoints of those who have made a living out of twisting and bending it.

 

[Frank Ettin]

And yes, a law is not unconstitutional except if and when a court says so.

Hogwash!

Unless the Constitution is changed during the interim, a law is either Constitutional or it is NOT when it it is passed. An unchnaged law cannot "become" Unconstitutional. The Supreme Court only affirms or denies whether it is or not....

And in the real world that, sir, is hogwash. A law is in effect and will be used to decide matters affecting the lives and property of real people in the real world -- unless and until it is, among other things, determined to be inapplicable or invalid by a court of competent jurisdiction.

You and your buddies can explain to each other all the reasons you think a law is, or should be, unconstitutional, but notwithstanding your most ardent convictions that it is unconstitutional that law will continue to be applied in the real world to affect the lives and properties of real people. The courts and the world will continue to go about their business without regard to your opinions.

...If this forum is to be useful in protection of the 2nd Amendment, then laws that violate the 2nd Amendment must be called out, brought up and have thoughtful discussion even before they are passed, and certainly after they are passed in order to GET them into the courts where they can be ruled upon.....

And that is primarily the role of the Activism Forum. In that Forum we discuss activities to try to prevent the enactment of pernicious laws and ways to challenge those laws if they are enacted.

In this, the Legal Forum, with respect to proposed laws we will discuss how they would be likely to affect us, what they would require from us, and what arguments, based on good legal principles, might be effective for challenging the law if enacted.

You also need to understand that if a law is challenged in court, the court will decide the outcome based on the ways of courts, based on certain legal principles and on decisions by past courts on similar or related matters. The result will not necessarily be decided on the bases of what you might think matters or is true.

...Every court case has at least two viewpoints, higher courts reverse lower courts, and most of the major Supreme Court decisions are 5-4, and an internet link does not establish undeniable truth...

Whether the process establishes "undeniable truth" is not the point. The point is that the process establishes practical truth in real world terms -- a truth that will decide matters affecting the lives and property of real people in the real world.

The interpretation of the Constitution and how it applied was a matter for dispute since the ink was barely dry. Marbury v. Madison appears to be the first major constitutional litigation, and it was decided in 1803. McCulloch v. Maryland was decided 10 years later, in 1813. The Founding Fathers expected disagreement regarding the interpretation and application of the Constitution and assigned to the federal courts the authority to exercise the judicial power of the United States to decide, among other things, cases arising under the Constitution (Article III, Sections 1 and 2):

Section 1.

The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish....​

Section 2.

The judicial power shall extend to all cases, in law and equity, arising under this Constitution,...​

The exercise of judicial power and the deciding of cases arising under the Constitution necessarily involves interpreting and applying the Constitution to the circumstances of the matter in controversy in order to decide the dispute. Many of the Founding Fathers were lawyers, a few were judges, and well understood what the exercise of judicial power meant and entailed.

...I'd much rather hear thoughful discussion on the Constitution from the people for whom it was written, than narrowly outlined parameters based on the viewpoints of those who have made a living out of twisting and bending it.

The function of the Legal Forum, as described on the index page, is (emphasis added):

Get informed on issues affecting the right to keep and bear arms. Coordinate activism, debate with allies and opponents. Discuss laws concerning firearm ownership, concealed carry and self-defense.

We focus on practical, real life legal issues, how laws can affect us in the real world. That's what matters to us here. As I wrote in a prior post:

...On one level that helps us makes decisions about whether or how to do things so that we can avoid ending up in court, or if we do end up in court we get a satisfactory outcome. On another level that helps us understand how to try to change things in a way to get what we would consider a better result in court under particular circumstances, e. g., by lobbying the legislature to change the law or by convincing a court it should rule in a certain way.

That might not be what you're looking for, but that's what we do here.

 

[Frank Ettin]

Lets take a quick look at the real significance of Meza-Rodriguez.

As Arizona Mike pointed out in post 19, there are two Second Amendment rulings in that case:

1. Bill of rights applies broadly to persons.
2. Statutory prohibition of illegal aliens withstands 2nd Amendment scrutiny.

Let's look at the second one first: Statutory prohibition of illegal aliens [possessing guns or ammunition] withstands 2nd Amendment scrutiny.

This really isn't new. Other disqualifying conditions have been upheld at the Circuit Court level.

One case in the Sixth Circuit (Tyler v. Hillsdale County Sheriff's Department, No. 13-1876 (Sixth Circuit, 2014)) began to chip away at the mental health disqualifying condition. In that case, the three judge panel ruled essentially that while the disqualification withstood a Second Amendment facial attack, as applied the Second Amendment at least required that there be a way to seek relief from the disqualification.

An en banc hearing has been granted in Tyler, vacating the opinion of the three judge panel. However, that now vacated opinion provides some possibly useful insights into the sorts of arguments that might ultimately be useful in efforts to mitigate the 18 USC 922(g) disqualifications.

Now let's look at the first one: Bill of rights applies broadly to persons.

To reach this conclusion the 7th Circuit adopted a broad reading of the word "people" in the Second Amendment ("...the right of the people to keep and bear arms..."). I think this is significant because it further reinforces a core ruling in Heller, i. e., that the Second Amendment protects a fundamental and individual (rather than collective) right.

This result in Meza-Rodriguez, acknowledging the rights protected by the Second Amendment as fundamental and individual, suggests that the collective rights theory of the Second Amendment is being well and truly laid to rest.

Thoughts?

 

[herrwalther]

This is a confusing statute by the court. Illegal aliens, by definition, are illegal in the United States. The 2A merely makes self defense easier and viable and not exclusive. To clarify a gun is not the only means of self defense. Our laws are our laws. The same people who say life, liberty, and pursuit of happiness are human rights are the ones that don't understand not every nation on earth shares our legal standing on those values. A carry permit in the United States is not worth the paper it is printed on anywhere else in the world, so why do our laws supposedly have to apply to anyone who comes here by breaking the law?

 

[Frank Ettin]

This is a confusing statute by the court....

This is not a "statute by the court." There is no such thing. Do you even know what you mean?

...Illegal aliens, by definition, are illegal in the United States. The 2A merely makes self defense easier and viable and not exclusive. To clarify a gun is not the only means of self defense. Our laws are our laws. The same people who say life, liberty, and pursuit of happiness are human rights are the ones that don't understand not every nation on earth shares our legal standing on those values....

Is this gibberish supposed to mean something in English? It's completely unintelligible and bears no relationship to the law, the legal system or this decision of the 7th Circuit.

 

[ApacheCoTodd]

"... The People..."

My take:

You are not a citizen or otherwise officially recognized as a "Resident Alien" then you are not of the people in having rights protected by the U.S. Constitution.

No guns, no ammo!

Still, a .22 "bullet" in his pocket? Really?


Todd.

 

[danez71]

My take:

You are not a citizen or otherwise officially recognized as a "Resident Alien" then you are not of the people in having rights protected by the U.S. Constitution.

No guns, no ammo!

Still, a .22 "bullet" in his pocket? Really?


Todd.

That 'take' would be wrong.


AZ Mike said it well.

1. Bill of rights applies broadly to persons.
2. Statutory prohibition of illegal aliens withstands 2nd Amendment scrutiny.

Maybe I can relate this to the 1A.

Whether or not he's a legal resident.... he still has Free Speach.

However, He still isnt allowed to scream "FIRE" in a movie theater because we have laws against that.


uuhhhh... that isnt a vey good analogy really.


Maybe Frank could give a better one.

 

[Frank Ettin]

My take:

You are not a citizen or otherwise officially recognized as a "Resident Alien" then you are not of the people in having rights protected by the U.S. Constitution....

....Whether or not he's a legal resident.... he still has Free Speach.

... that isnt a vey good analogy really.


Maybe Frank could give a better one.

I don't know that I have a better analogy, but I can repeat that what someone's "take" on the question doesn't matter. The courts tell us what the law is, and in this case the 7th Circuit has ruled contrary to ApacheCoTodd's "take" and cited a number of other cases also disagreeing with ApacheCoTodd.

 

[TimSr]

That might not be what you're looking for, but that's what we do here.

I'm a guest on your forum so I can respect that, but you are right. It's not what I'm looking for in a legal discussion. Best wishes.

 

[bikerdoc]

I went to law school nights for one term back in 71. I didnt like it and switched to medicine.
The one thing I did learn was that my opinion meant nothing and unless you could cite statute or case law you would dismissed as unprepared.

 

[Berger.Fan222]

For me, the law is a special case of making it illegal to possess a firearm during the commission of a crime.

Being in the US illegally is a crime.

Possessing a firearm while being in the US illegally is possession of a firearm during the commission of a crime.

It is not a violation of RKBA to prohibit possession of a firearm during the commission of a crime.

 

[lilguy]

Posts # 28 and 36 have help me settle it my mind. Thank you.

 

[Frank Ettin]

For me, the law is a special case of making it illegal to possess a firearm during the commission of a crime.....

That might be what it is for you, but it has nothing whatsoever to do with what it is in real life.

If anyone wants to understand the law, one needs to understand what the statutes actually say, what the court decisions say, and how courts apply case law and statutes to facts to decide matters before them. It's hard work doing that. It means reading and understanding things that are hard to read and hard to understand (like court decision and statutes). It means focused, disciplined, and rigorous thinking. But that's the way one connects with and can come to understand and deal with what is actually going on in the world.

It's of course much easier, and more fun, to sit and imagine how things are and how they ought to be. One doesn't have to know as much, nor does one have to work so hard at it. But it also means that one isn't connected with, nor can one understand and effectively deal with what actually is going on in the world.

And it occurs to me that the more naive and disconnected from the real world of law and politics RKBA community is the happier the supporters of gun control are.

 

[10mm Mike]

It's hard work doing that. It means reading and understanding things that are hard to read and hard to understand (like court decision and statutes). It means focused, disciplined, and rigorous thinking.

Ironic considering that none of that critical thought and hard work went into writing any of the gun laws that the courts are making rulings on.

 

[Frank Ettin]

Ironic considering that none of that critical thought and hard work went into writing any of the gun laws that the courts are making rulings on.

How do you know? Were you there? Perhaps you're merely displaying your prejudices.

Too often we disparage our opposition because it suits our vanities. But underestimating one's enemies is a fine way to lose.

 

[10mm Mike]

How do you know? Were you there? Perhaps you're merely displaying your prejudices.

I didn't have to be there. I'm making on observation. The legislators writing the bills are ill educated on firearms, and instead of trying to educate themselves on the topic, they instead jump right in trying to ban things they know nothing about, like "the shoulder thing that goes up".

The existing gun laws are an illogical mish-mash of ignorance - leaving it up to the courts to figure it out and have lawyers fight over it.

If the authors of the laws would take a little time, and do as you suggest with some focused, disciplined, and rigorous thinking and educate themselves on the topic, it would be alot easier for EVERYONE to understand, to include the lawyers and courts.

 

[Frank Ettin]

I didn't have to be there. I'm making on observation....

In other words, you really have no idea and are just guessing. You're making all kinds of assumptions about a subject you really know nothing about.

Have you ever participated in writing a statute which was ultimately enacted? Have you ever done any research into the legislative history of a statute -- tracking its development through committee hearings, debates on the floor of the legislature, discussions in private with interested parties, the succession of amendments to the original bill as they were proposed, adopted or rejected? Have you ever studied the process in detail?

I have. I strongly suspect that you have not.

 

[lilguy]

I understand your "hope" about affirming the individual right in the second amendment. You appear to believe that is what they did, correct? What is the reasoning for upholding the conviction if it's not that he was a criminal, illegal immigrant, in possession of ammunition? If he was a legal immigrant and convicted of a crime the ammo would also be used against him.

 

[10mm Mike]

In other words, you really have no idea and are just guessing. You're making all kinds of assumptions about a subject you really know nothing about.

The only assumptions being made here, are the ignorant assumptions being made by you, directed towards me and probably several other posters here.

Have you ever participated in writing a statute which was ultimately enacted?

I don't have to participate in the writing of such a thing to make an accurate determination that the authors/sponsors are ignorant of the topic. I will reference again, the infamous "shoulder thing that goes up".

Have you ever done any research into the legislative history of a statute -- tracking its development through committee hearings, debates on the floor of the legislature, discussions in private with interested parties, the succession of amendments to the original bill as they were proposed, adopted or rejected? Have you ever studied the process in detail?

I have. I strongly suspect that you have not.

Congratulations, so have I.


In an attempt to prevent thread hijack... Their ruling basically states that:

The 2nd Amendment applies to everyone within the borders of the United States, to include illegal aliens.

But, the prohibition of guns & ammo to illegals stands as a reasonable infringement much in the same way that there is a prohibition to felons and other restricted persons. Is that correct, or is there something about this that makes it different?

 

[Frank Ettin]

...I understand your "hope" about affirming the individual right in the second amendment. You appear to believe that is what they did, correct?...

Yes. Why is addressed in post 8.

...What is the reasoning for upholding the conviction if it's not that he was a criminal, illegal immigrant, in possession of ammunition?...

That was also covered by me in post 8. It was mentioned by Arizona Mike in post 19 and again touched on by me in post 28.

To put it another way, under 18 USC 922(g)(5) aliens present here illegally or legally present here on a non-immigrant visa (with a few, narrow exceptions) are prohibited from possessing guns or ammunition. The 7th Circuit concluded that statute stood up under constitutional scrutiny and survived a challenge as a permissible regulation of a constitutionally protected right.

You might want to read the actual opinion of the 7th Circuit. In post 8 I linked to the opinion.

...If he was a legal immigrant and convicted of a crime the ammo would also be used against him.

Even if he was an alien legally in this country on other than an immigrant visa, his possession of ammunition, alone, would have been a federal crime as a violation of 18 USC 922(g)(5).

The only assumptions being made here, are the ignorant assumptions being made by you, directed towards me and probably several other posters here....

Then feel free to set the record straight.

...I don't have to participate in the writing of such a thing to make an accurate determination that the authors/sponsors are ignorant of the topic. I will reference again, the infamous "shoulder thing that goes up"....

The fact that a legislator may be ignorant on certain technical matters related to firearms does not mean that he/she is ignorant about the legislative process and about writing and getting laws passed. The fact is that legislators are adept enough at accomplishing their purposes. We might object to their purposes, and they may in fact be very misguided; but the laws are often still getting passed.

We love to snicker whenever a politician says something dumb about guns. But he might still be very effective at moving his anti-gun legislation. In other words, he might be ignorant about guns, but he knows how to do his job.

...In an attempt to prevent thread hijack... Their ruling basically states that:

The 2nd Amendment applies to everyone within the borders of the United States, to include illegal aliens.

But, the prohibition of guns & ammo to illegals stands as a reasonable infringement much in the same way that there is a prohibition to felons and other restricted persons. Is that correct, or is there something about this that makes it different?

That is correct. Of course it's no surprise that you got that right since I explained it in some detail in post 8; Arizona Mike neatly summarized that in post 19; and I expanded on his summary in post 28.

 

[Teachu2]

Yes. Why is addressed in post 8.

That was also covered by me in post 8. It was mentioned by Arizona Mike in post 19 and again touched on by me in post 28.

To put it another way, under 18 USC 922(g)(5) aliens present here illegally or legally present here on a non-immigrant visa (with a few, narrow exceptions) are prohibited from possessing guns or ammunition. The 7th Circuit concluded that statute stood up under constitutional scrutiny and survived a challenge as a permissible regulation of a constitutionally protected right.

You might want to read the actual opinion of the 7th Circuit. In post 8 I linked to the opinion.

Even if he was an alien legally in this country on other than an immigrant visa, his possession of ammunition, alone, would have been a federal crime as a violation of 18 USC 922(g)(5).

Then feel free to set the record straight.

The fact that a legislator may be ignorant on certain technical matters related to firearms does not mean that he/she is ignorant about the legislative process and about writing and getting laws passed. The fact is that legislators are adept enough at accomplishing their purposes. We might object to their purposes, and they may in fact be very misguided; but the laws are often still getting passed.

We love to snicker whenever a politician says something dumb about guns. But he might still be very effective at moving his anti-gun legislation. In other words, he might be ignorant about guns, but he knows how to do his job.

That is correct. Of course it's no surprise that you got that right since I explained it in some detail in post 8; Arizona Mike neatly summarized that in post 19; and I expanded on his summary in post 28.

Some of us without legal training like to be certain we truly understand what we're reading. Please bear with us, and take joy in the fact that you helped us understand. Sometimes it might take us five, or even six, good solid explanations to understand such a ruling. Many of us are not comfortable in the culture of the courtroom, and struggle to understand rulings that are contrary to our personal values and beliefs. We come here to gain knowledge and reach understanding, and I thank you for your efforts.

 

[JSH1]

Some of us without legal training like to be certain we truly understand what we're reading. Please bear with us, and take joy in the fact that you helped us understand. Sometimes it might take us five, or even six, good solid explanations to understand such a ruling. Many of us are not comfortable in the culture of the courtroom, and struggle to understand rulings that are contrary to our personal values and beliefs. We come here to gain knowledge and reach understanding, and I thank you for your efforts.

My primary frustration with this type of thread is people that refuse to admit that the court has the final say in these matters. The folks that believe their personal interpretation of the law or constitution trumps rulings made by the court.

It is right up there with "The founders intended .... " statements which are meaningless because a founder can be found to back either side of any argument.

 

[200Apples]

.

My primary frustration with this type of thread is people that refuse to admit that the court has the final say in these manners. The folks that believe their personal interpretation of the law or constitution trumps ruling made by the court.

I swear, it's like talking to my wife at dinner. She'll say, "well, why don't they...?", or, "they SHOULD..." etc...

Because that's not how it's done in the world outside your own. And I love my wife. She just hasn't the perspective necessary at times to see the bigger picture. I see some of that narrow-mindedness here in this thread, taking personal affronts at someone taking the time to try to show us, and very well, mind you, how the law really works.

Law is a tedious business. That's why we have lawyers.

 

[Frank Ettin]

....Many of us are not comfortable in the culture of the courtroom, and struggle to understand rulings that are contrary to our personal values and beliefs....

I do understand that, and when someone appears to be genuinely interested in learning, I try to make things accessible to him. But it's also been my experience that some people make things more difficult by letting their prejudices or preconceive notions get in the way.

As I've mentioned before, the law is often non-intuitive. And to some people it won't make sense because they don't have the necessary foundational knowledge. The reality of law is often at odds with what some people think the law is. The way the legal system actually works is often different from the way people think it works.

Often it helps if someone is able to accept the fact that he doesn't know and that he needs to learn.

 

[Derry 1946]

The court concluded: Congress's interest in prohibiting persons who are difficult to track and who have an interest in eluding law enforcement is strong enough to support the conclusion that 18 USC 922(g)(5) does not impermissibly restrict Meza-Rodriguez's Second Amendment right to bear arms." The court acknowledges that the defendant did not enter the US illegally; he was brought here at age 4 or 5, too young to form criminal intent. The court concedes the defendant did NOT commit a crime by remaining in the US. As far as we know, he was not convicted of any crime apart from possessing a bullet. The government suspected he was the person holding what might be a gun in a surveillance video, but no real evidence of this was offered, and there was certainly no conviction. So the 7th circuit has held that the Second Amendment does not prevent the government from banning possession of firearms and ammunition by people who are "difficult to track" (the example was having no address) and "have an interest in eluding law enforcement." The former might logically be extended to anyone who moves a lot for jobs, is between apartments, uses TOR, is a homeless veteran, is moving between hospitals, etc. This latter could include anyone who has unpaid parking tickets, has warrants, owes child support, or the like, even if they, like Meza-Rodriguez, have no criminal record.