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Peaceful John
01-05-2010, 12:24 PM
If McDonald is resolved via P/I, it would seem that only "citizens" would be directly benefited. If via Due Process, it would seem that the benefits would extend to citizens and non-citizens as well.

I'm sure I've got something wrong and would much appreciate being corrected. Can somebody help?

M. D. Van Norman
01-05-2010, 12:40 PM
Equal protection.

510dat
01-05-2010, 12:56 PM
The SCOTUS has long ruled that everybody present within the boundaries of the US has all the rights (but not necessarily privileges) that are guaranteed by the Constitution.

I.e., even illegal immigrants have a 4th Amendment right to privacy.

This is good, because without this kind of ruling, the police would be able to violate your rights until you can prove that you're a citizen/legal resident.

Nose Nuggets
01-05-2010, 2:40 PM
The SCOTUS has long ruled that everybody present within the boundaries of the US has all the rights (but not necessarily privileges) that are guaranteed by the Constitution.

I.e., even illegal immigrants have a 4th Amendment right to privacy.

This is good, because without this kind of ruling, the police would be able to violate your rights until you can prove that you're a citizen/legal resident.

It also furthers the notion that its not the piece of paper that grants the rights. It merely states that we have them.

troysland
01-05-2010, 2:47 PM
Sure, here in CA, I've done PPT's with "Legal Residents" who enjoy the 2nd Amendment Right. So clearly, Citizenship isn't a requirement.

yellowfin
01-05-2010, 2:52 PM
I wish there were a way to make it contingent upon them actually supporting the rights.

Flopper
01-05-2010, 3:38 PM
The SCOTUS has long ruled that everybody present within the boundaries of the US has all the rights (but not necessarily privileges) that are guaranteed by the Constitution.


I would like to research this. Can you direct me to a starting point?

picasso
01-05-2010, 3:50 PM
The SCOTUS has long ruled that everybody present within the boundaries of the US has all the rights (but not necessarily privileges) that are guaranteed by the Constitution.

I.e., even illegal immigrants have a 4th Amendment right to privacy.

This is good, because without this kind of ruling, the police would be able to violate your rights until you can prove that you're a citizen/legal resident.

Well the 2A is a right. But how can the non-citizen be part of a militia that the 2A uphold. Although individuals within the boundaries of the US need protection for self-defense too. Does this include the illegals? They can have guns because it's a right, but they can't drive because a DL is a privilege.:confused:

As far as I know the legal permanent residents can have guns.

Mitch
01-05-2010, 3:55 PM
I would like to research this. Can you direct me to a starting point?

You can start with the Bill of Rights itself.

http://topics.law.cornell.edu/constitution/billofrights

Note that the word "citizen" appears nowhere in the text of the first ten amendments.

a1c
01-05-2010, 4:04 PM
Well the 2A is a right. But how can the non-citizen be part of a militia that the 2A uphold. Although individuals within the boundaries of the US need protection for self-defense too. Does this include the illegals? They can have guns because it's a right, but they can't drive because a DL is a privilege.:confused:

As far as I know the legal permanent residents can have guns.

There are plenty of non-US citizens in the US armed forces.

No, illegals cannot purchase or own firearms. But legal immigrants can, provided they fulfill some legal requirements (permanent residence or hunting license).

Mitch
01-05-2010, 4:06 PM
There are plenty of non-US citizens in the US armed forces.

Orange County's first fatality in the 2003 Iraq invasion, a neighbor of mine, was a Mexican citizen.

http://www.dailypilot.com/articles/2009/12/23/features/dpt-storyoftheyear122409.txt

GrizzlyGuy
01-05-2010, 4:30 PM
If McDonald is resolved via P/I, it would seem that only "citizens" would be directly benefited. If via Due Process, it would seem that the benefits would extend to citizens and non-citizens as well.

I'm sure I've got something wrong and would much appreciate being corrected. Can somebody help?

Maybe. It's not as simple as it seems. For example, see here (http://volokh.com/posts/1224026623.shtml):

U.S. v. Guerrero-Leco, 2008 WL 4534226 (W.D.N.C. Oct. 6, 2008), holds that the Second Amendment doesn't apply to illegal aliens. The court correctly declines to follow pre-Heller Fourth Circuit precedent that upheld the ban on illegal aliens' possession of guns, and instead reasons itself from Heller. The reasoning, unfortunately, isn't very detailed:

The Supreme Court did not find that all individuals present in America are protected by the Second Amendment...

Another example here: SAF SUES ERIC HOLDER OVER GUN RIGHTS OF NON-RESIDENT AMERICAN CITIZENS (http://saf.org/viewpr-new.asp?id=290)

RKBA in state constitutions also varies: some guarantee the rights to persons, some to citizens.

SCOTUS could make a variety of rulings in McDonald. Maybe they will extend all of 2A to all persons, maybe just to citizens, maybe something in between, who knows.

kf6tac
01-05-2010, 4:41 PM
I think the OP's confusion stems from the phrasing of the Privileges or Immunities Clause:

"No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States"

He is interpreting that as saying, "States can't do anything to United States citizens that abridges their privileges or immunities," which, if that were what it meant, would limit the operation of the clause to U.S. citizens only.

However, "privileges or immunities of citizens of the United States" is a legal term of art, so we have to read the clause as saying that states can't do anything to "the people" (though this is unspoken in the clause) that would take from them any of the rights that is understood to be part of the "privileges or immunities of citizens of the United States."

Sgt Raven
01-05-2010, 5:04 PM
The 2A like our other 'Natural' rights doesn't matter where you're born. Everyone every where has these rights. :rolleyes:

kf6tac
01-05-2010, 5:09 PM
The 2A like our other 'Natural' rights doesn't matter where you're born. Everyone every where has these rights. :rolleyes:

Everyone has them, but the Constitution does not necessarily provide legal protection of them for everyone.

OleCuss
01-05-2010, 5:17 PM
Well the 2A is a right. But how can the non-citizen be part of a militia that the 2A uphold. Although individuals within the boundaries of the US need protection for self-defense too. Does this include the illegals? They can have guns because it's a right, but they can't drive because a DL is a privilege.:confused:

As far as I know the legal permanent residents can have guns.

Oddly enough, you can be a non-citizen and still be a member of the unorganized militia:

CAL. MVC. CODE 122 : California Code - Section 122
The militia of the State consists of all able-bodied male citizens and all other able-bodied males who have declared their intention to become citizens of the United States, who are between the ages of eighteen and forty-five, and who are residents of the State (legal mumbo-jumbo follows).

So it looks like if you are male and 18-45 y/o and are either a citizen or intend to become a citizen (probably meaning you have applied for citizenship or have otherwise initiated a naturalization process) - you are likely a member of the unorganized militia of the State of California. A notable exception is if you are part of the Organized Militia.

FWIW

Nose Nuggets
01-05-2010, 5:52 PM
Everyone has them, but the Constitution does not necessarily provide legal protection of them for everyone.

wut? doesn't constitutionality play a role in every prosecution?

Flopper
01-05-2010, 6:26 PM
You can start with the Bill of Rights itself.

http://topics.law.cornell.edu/constitution/billofrights

Note that the word "citizen" appears nowhere in the text of the first ten amendments.

Sorry, but that really doesn't tell me anything.

I want to understand the the legal reasoning behind these rulings, and I'm sure that includes understanding the legal definitions and differences between "people" and "citizens" in this context.

To do that I was hoping to get the names of a few cases to get started.

kf6tac
01-05-2010, 6:37 PM
wut? doesn't constitutionality play a role in every prosecution?

That's not what I meant. People born in China have the same natural rights as people born here, but the U.S. Constitution provides no legal shelter to them for exercising those rights unless they exercise them within the borders of the U.S. And even once you're here, the Supreme Court has explained that you become a part of "the people" who are protected by the Bill of Rights only after you have taken steps to join the class of persons "who are part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community," which, as GrizzlyGuy noted above, some district courts are now interpreting to mean that illegal immigrants are not always within the class of people to whom the Bill of Rights grants legal protection.

The point is that it's not a simple matter of saying, "All people are born with these rights, so we all have them."

This is all, of course, getting off the course of the OP's original concern, which is that if the Privileges or Immunities Clause is going to work as a new vehicle for incorporation, then it needs to apply to all people, not just U.S. citizens. You can't incorporate a right to all people through a Constitutional provision which, by its own terms, only extends to U.S. citizens. Arguably, though, the PoI Clause does not limit itself to just U.S. citizens.

kf6tac
01-05-2010, 6:38 PM
Sorry, but that really doesn't tell me anything.

I want to understand the the legal reasoning behind these rulings, and I'm sure that includes understanding the legal definitions and differences between "people" and "citizens" in this context.

To do that I was hoping to get the names of a few cases to get started.

http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=US&vol=494&invol=259

United States v. Verdugo-Urquidez is one of the Supreme Court's more recent cases discussing what "the people" means.

Flopper
01-05-2010, 6:56 PM
You can start with the Bill of Rights itself.

http://topics.law.cornell.edu/constitution/billofrights

Note that the word "citizen" appears nowhere in the text of the first ten amendments.

Thanks to kf6tac!

To Mitch: you're correct, but according to the quick preliminary scan of the links kf6tac provided, the "people" means something more inclusive than the "citizens," but it's less inclusive than "everyone."

It's a little bit of a long read, but it's nonetheless very informative.

snobord99
01-05-2010, 7:16 PM
Thanks to kf6tac!

To Mitch: you're correct, but according to the quick preliminary scan of the links kf6tac provided, the "people" means something more inclusive than the "citizens," but it's less inclusive than "everyone."

It's a little bit of a long read, but it's nonetheless very informative.

If you don't mind doing quite a bit of reading, you could also look to Boumediene v. Bush, 128 S. Ct. 2229. It deals with the Gitmo detainees and the reach of the constitution. Lengthy and, in all honesty, I've not read the whole thing, but one of my mock trials in law school was on this case and the reach of the constitution was definitely an issue we had to address.

Flopper
01-05-2010, 11:38 PM
If you don't mind doing quite a bit of reading, you could also look to Boumediene v. Bush, 128 S. Ct. 2229. It deals with the Gitmo detainees and the reach of the constitution. Lengthy and, in all honesty, I've not read the whole thing, but one of my mock trials in law school was on this case and the reach of the constitution was definitely an issue we had to address.

Thank you!