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View Full Version : Federal judge rules in favor of South Dakota CCW for green-carders...


1JimMarch
02-10-2011, 3:15 PM
This is apparently the first report we're getting on the South Dakota case where the "CCW for US citizens only" state law was challenged.

http://www.keloland.com/NewsDetail6162.cfm?Id=110604

This is in line with the California appellate court ruling in Rappard that said basically the same thing: permanent legal residents cannot be discriminated against in the handling of gun rights and gun laws.

Anybody got a link to the ruling? There could be all kinds of neat stuff in there re: Heller/McDonald...

Southwest Chuck
02-10-2011, 3:26 PM
This is apparently the first report we're getting on the South Dakota case where the "CCW for US citizens only" state law was challenged.

http://www.keloland.com/NewsDetail6162.cfm?Id=110604

This is in line with the California appellate court ruling in Rappard that said basically the same thing: permanent legal residents cannot be discriminated against in the handling of gun rights and gun laws.

Anybody got a link to the ruling? There could be all kinds of neat stuff in there re: Heller/McDonald...

Couldn't find it on Google yet, but geez, South Dakota only charges $10.00 for a 4 year permit!

Window_Seat
02-10-2011, 3:39 PM
Smith v. Nelson (http://www.archive.org/download/gov.uscourts.sdd.47987/gov.uscourts.sdd.47987.docket.html)
:cool:

ETA: The docket hasn't been updated to reflect this.

ETA again, I think this docket isn't even being updated because all the dates in it are 01/03. Gray's links below are the right ones.

Erik.

Gray Peterson
02-10-2011, 3:44 PM
Smith v. Nelson is attached to this post.

IGOTDIRT4U
02-10-2011, 3:51 PM
Actually, old news. Fox News (net) reported on this a few weeks back.

But, thanks for the case links. It's now published.

Gray Peterson
02-10-2011, 4:08 PM
Actually, old news. Fox News (net) reported on this a few weeks back.

But, thanks for the case links. It's now published.

It's not old news. The lawsuit was filed a few weeks ago, decision came out yesterday, published today.

IGOTDIRT4U
02-10-2011, 4:48 PM
It's not old news. The lawsuit was filed a few weeks ago, decision came out yesterday, published today.

Yeah, my mistake. We had a few threads on the case a few weeks back, but it had not got to a decision at that time.

Either way, if someone is legally here on a green card or similar (not visas, though) there is no reason why they are not able to enjoy all rights of citizens except the right to vote.

1JimMarch
02-10-2011, 4:59 PM
Just read it. There's no mention whatsoever of Heller or McDonald or any other classic RKBA case. This one was handled purely on an equal protection basis.

Interesting, and cool, but it doesn't help push the ball forward in other cases.

Should be cause for the California counties with a citizens-only CCW policy to re-think that...as if People v. Rappard wasn't enough...

Gray Peterson
02-10-2011, 5:17 PM
Just read it. There's no mention whatsoever of Heller or McDonald or any other classic RKBA case. This one was handled purely on an equal protection basis.

Interesting, and cool, but it doesn't help push the ball forward in other cases.

Should be cause for the California counties with a citizens-only CCW policy to re-think that...as if People v. Rappard wasn't enough...

Actually, Massachusetts forbid non-citizens from acquiring LTC Class A's, which allow for pistol possession in one's home there.

I believe that Missouri has a similar ban as well.

edsel6502
02-10-2011, 5:50 PM
Don't forget Oregon.

Gray Peterson
02-10-2011, 5:53 PM
Don't forget Oregon.

Good point.

Funtimes
02-10-2011, 6:05 PM
I will have to look at Hawaii; we have some issues with aliens in our laws I am sure of it.

RSC
02-10-2011, 6:33 PM
I really like:

"The violation of a constitutionally protected right constitutes “irreparable
harm.”8 See Kirkeby v. Furness, 52 F.3d 772, 775 (8th Cir. 1995) (“ ‘The loss of
First Amendment freedoms, for even minimal periods of time, unquestionably
constitutes irreparable injury.’ ” (quoting Elrod v. Burns, 427 U.S. 347, 373
(1976))"

The question now is, why only for the First Amendment rights? Shouldn't all constitutional protected rights enjoy equal protection from violation? :innocent:

Glock22Fan
02-10-2011, 6:44 PM
Yeah, my mistake. We had a few threads on the case a few weeks back, but it had not got to a decision at that time.

Either way, if someone is legally here on a green card or similar (not visas, though) there is no reason why they are not able to enjoy all rights of citizens except the right to vote.

IIRC, and ICBWAT (I Could Be Wrong About This), the other way a GC is different is, I was told when I was in that situation, if you are a GC holder married to a US citizen and die intestate.

I must admit I was slightly annoyed about not voting. Whatever happened to no taxation without representation? I was certainly paying enough taxes.

rabagley
02-10-2011, 8:33 PM
Yeah, my mistake. We had a few threads on the case a few weeks back, but it had not got to a decision at that time.

Either way, if someone is legally here on a green card or similar (not visas, though) there is no reason why they are not able to enjoy all rights of citizens except the right to vote.

Exactly right, thought I would frame it slightly differently:

The protections of the rights of the people includes the rights of legal aliens. The rights and privileges of citizens includes those rights and a few others besides.

Check out the amended US Constitution and figure out how many of those rights are granted to a/the "person" or the "people".

The Supreme court has been holding that legal aliens enjoy most of the same rights as citizens since 1886.

This was deliberately reinforced in the 14th Amendment, according to the language of the Constitutional Committee that drafted it:

"The last two clauses of the first section of the amendment disable a State from depriving not merely a citizen of the United States, but any person, whoever he may be, of life, liberty, or property without due process of law, or from denying to him the equal protection of the laws of the State. This abolishes all class legislation in the States and does away with the injustice of subjecting one caste of persons to a code not applicable to another. . . . It [the 14th Amendment] will, if adopted by the States, forever disable every one of them from passing laws trenching upon those fundamental rights and privileges which pertain to citizens of the United States, and to all persons who may happen to be within their jurisdiction."

People means people. Citizen means citizen. The two terms should not be confused with each other as they do not mean the same thing.

CCWFacts
02-10-2011, 8:51 PM
I'm glad for the ruling, but I would have been absolutely stunned if it didn't go that way. Perm. residents have all the same rights as citizens, except the right to vote, certain gov't jobs, juries, and certain elected positions. Even illegal aliens have almost all the same rights as citizens / legal perm. residents, minus the RKBA and the right to not be deported...

Quiet
02-11-2011, 6:24 AM
Anyone else notice that the ACLU of SD was the organization that sued to allow the green card holder the right to carry and that the Gun Owners of America opposed the lawsuit.

Patrick-2
02-11-2011, 7:48 AM
Just read it. There's no mention whatsoever of Heller or McDonald or any other classic RKBA case. This one was handled purely on an equal protection basis.

Interesting, and cool, but it doesn't help push the ball forward in other cases.
...

Actually, there is some good stuff in here. Just need some caffeine and a few minutes to read between the lines. :)

True - Strict Scrutiny was applied to the plaintiff due to jurisprudence regarding his alienage. The Supreme Court has said that legal aliens are a "suspect class", meaning in general terms they are to be treated as US citizens, but that a court can evaluate the class based on the restriction involved. So in the case of voting, aliens are not afforded any protections because the constitution stipulates no rights there. But absent such clear constitutional language, they are "suspected" of sharing in our system of rights.

Or something like that. I am working from memory.

So none of the above involved guns.

BUT...the state did fail on their argument that their "police powers" reduced the standard of scrutiny to that of rational basis because guns were involved:

Defendants argue that the rational basis test is the appropriate standard to apply in this case because SDCL 23-7-7.1(8) is the result of the state exercising its police powers. In support of this argument, defendants rely on a decision by the United States Supreme Court, Patsone v. Pennsylvania, which relied on the so-called “special public-interest doctrine.” ... While defendants are correct in noting that Patsone has never been officially overruled, subsequent decisions by the United States Supreme Court expressly “cast doubt on the validity of the special public-interest doctrine.” And the Court in Graham effectively rejected the “public interest doctrine” by applying “strict judicial scrutiny” even though the states were regulating the disbursement of its limited resources in the area of “welfare benefits.” The court therefore rejects defendants’ argument that the exercise of its police powers, as applied to Smith, is subject to rational basis review as opposed to strict scrutiny.


That police power was directly tied to their ability to hand out carry permits. The argument: "The state has a responsibility to afford the people public safety and handing out concealed carry permits are a function of that power; therefore we can pass laws under the guise of public safety to restrict permits as we see fit."

The state argument failed. The District Court applied Graham (an alienage case) to strike the 'special public-interest doctrine' and use strict scrutiny.

So how does this apply to gun permits?

There is some limited help here. The Court did not rule in any way on the constitutional standard required to evaluate any Second Amendment issues. Even though the permitting restriction failed on Due Process grounds, it failed over an alienage issue that already had strong jurisprudence within SCOTUS. So it was a clear case where Equal Protection applied.

Items that help our cause:


'Special Public-Interest Doctrine' claim denied for carry permits: the Court said that Smith could be evaluated as well as any citizen given his long residency in the United States. The US criminal court system does not ignore crimes committed by aliens, so there is no reason Smith should be treated differently. This logic is not 2A-specific but the court completely ignored the argument that a state has the power to arbitrarily define classes of people outside the scope of 2A simply because they have an inarticulate, potential public interest in doing so.


Equal Protection applied: When it comes to a permit to carry a gun, you cannot eliminate entire classes on arbitrary grounds. If a court must "suspect" that lawful aliens have the right, then actual lawful citizens are an obvious inclusion.


What this does not do:


There was no 'good cause' requirement here to evaluate, but there was an appeal process within the state where one would implicitly have to state good cause in the event they were denied a permit. Either way, the court went straight to the core of the issue and ruled without considering any requirement for a cause itself.


There was no opinion on any right to carry: This case did not approach that issue directly. It was a straight EP complaint where a law (any law) targeted a whole class and restricted them from an activity that other lawful state resident could enjoy. Comparison was made between the permit and the provision of welfare benefits and law licenses. Welfare benefits are not a constitutional right (yet) but they also were evaluated using strict scrutiny. But indirectly, there are effects resulting from the failed police-powers argument I note above.


Overall

The ACLU got a Second Amendment win but completely avoided an argument over the Second Amendment to get it. Before anyone gets uptight and claims the ACLU was avoiding 2A issues to further some special interest and not help our cause...keep in mind how long our pro-carry cases take. Arguments over a true right to carry in public are questions of first impression. They will take longer.

Lawyers are charged with attaining the best outcome for their clients in the fastest, most expedient way possible. The ACLU did that here, and did a bang-up job in the process. Good on them. Their client should thank them. He won regardless of the argument used.


Again...I think there is value in here for our case. Specifically the fact that a Federal District Court required strict scrutiny to evaluate this restriction even in the face of a public-interest doctrine exception the state claimed should exist when it came to public carry of guns. The argument was introduced by the state; it was evaluated and it was shot down. This is an explicit evaluation of a Second Amendment issue: the state claimed they have the 'police power' to restrict permits arbitrarily (rational basis and legislative intent). The court shot that down and said 'strict' analysis applies based on Equal Protection. Even though the context of that Equal Protection scrutiny was alienage, the fact is that an attempt to carve out special powers when it came to carry permits failed.

We will almost surely see that aspect of the case repeated by our side. It wasn't a direct hit, but it damages the other side's argument all the same. At least in one District Court, the argument that the state can restrict permits - even to non-citizens - based on an inarticulate public-safety argument failed.