Obama’s ‘DREAM’ order may give illegal aliens Second Amendment rights
Obama’s ‘DREAM’ order may give illegal aliens Second Amendment rights
Quote:
And gun rights leaders like Philip Van Cleave, President of the Virginia Citizens Defense League (
VCDL), agree. “All people have the natural right of self-defense,” said Van Cleave. "The Second Amendment just secures the right to carry self-defense tools and should apply to all of the people unless they have been adjudicated mentally incompetent to possess a firearm or convicted of a violent felony.”
Mike Stollenwerk
DC Gun Rights Examiner
“President Obama stunned the nation when he announced that he would be implementing the chief provisions of the ‘DREAM Act’ through executive fiat” wrote Kansas Secretary of State Kris W. Kobach last week in the New York Post. Mr. Kobach is the co-author of the Arizona and Alabama illegal-immigration statutes now under scrutiny by the US Supreme Court.
The new federal policy Korbach attacks is announced in a memorandum issued by United States Secretary of the Department of Homeland Security (DHS) Janet Napolitano directing DHS agencies to (1) not deport illegal aliens who entered the United States as children, and (2) issue these illegal aliens indefinitely renewable Employment Authorization Documents (EADs).
http://sync.mathtag.com/sync/img?typ...d%5bMM_UUID%5dNapolitano stated that
“[t]he following criteria should be satisfied before an individual is considered for an exercise of prosecutorial discretion pursuant to this memorandum:
• came to the United States under the age of sixteen;
• has continuously resided in the United States for a least five years preceding the date of this memorandum and is present in the United States on the date of this memorandum;
• is currently in school, has graduated from high school, has obtained a general education development certificate, or is an honorably discharged veteran of the Coast Guard or Armed Forces of the United States;
• has not been convicted of a felony offense, a significant misdemeanor offense, multiple misdemeanor offenses, or otherwise poses a threat to national security or public safety; and is not above the age of thirty.”
Napolitano also noted that “[t]his memorandum confers no substantive right.”
Or does it?
Last month in United States v. Huitron-Guizar the United States Court of Appeals for the Tenth Circuit issued an opinion upholding a lower court’s conviction and related sentence for an illegal alien's violation of the federal Gun Control Act of 1968's (GCA 68's) alien-in-possession statute. Mr. Huitron-Guizar claimed he was merely exercising his Second Amendment rights.
The Second Amendment provides that “[a] well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.” In District of Columbia v. Heller (2008) the US Supreme Court held that the Second Amendment secures “the individual right to possess and carry weapons in case of confrontation” for “the people” as explained in United States v. Verdugo-Urquidez, 494 U.S. 259 (1990) (holding that the term “the people” includes “aliens [who] have come within the territory of the United States and developed substantial connections with this country” but not “a nonresident alien and located in a foreign country.”).
There were three potential paths that the Tenth Circuit could have taken to deal with this challenge to the federal alien-in-possession statute: (1) Hold that Congress has plenary power over aliens and can deny them their Second Amendment rights at will; (2) Hold that illegal aliens are not part of “the people” covered by the Second Amendment; or (3) Directly decide if the federal alien-in-possession statute violated the Second Amendment.
Indicating that paths 1 and 2 appeared arguably barred by Verdugo-Urquidez, the Huitron-Guizar Court chose path number 3 and assumed for purposes of its opinion that the Second Amendment applied to aliens. After applying intermediate scrutiny (where “a law is sustained if the government shows that it is ‘substantially related’ to an ‘important’ official end”) to Huitron-Guizar’s second Amendment claim, the Court ruled against Mr. Huitron-Guizar.
The Court reasoned that
“[t[he alien-in-possession ban was incorporated from a predecessor statute by the 1986 Firearm Owners’ Protection Act, Pub.L. No. 99-308, 100 Stat. 449, likewise with purpose of keeping instruments of deadly force away from those deemed irresponsible or dangerous. S.Rep. No. 98-583, at 12 (1986). Congress may have concluded that illegal aliens . . . largely outside the formal system of registration, employment, and identification, are harder to trace and more likely to assume a false identity. Or Congress may have concluded that those who show a willingness to defy our law are candidates for further misfeasance or at least a group that ought not be armed when authorities seek them.”
Enter the ‘DREAM’ order aliens.
‘DREAM’ order aliens, though putatively unlawfully resident, will have (1) registered biometrically with the DHS, (2) passed a criminal background check, (3) filed INS Forms I-9 with their employers, and (4) been required to carry their EADs with them at all times. So unlike run of the mine illegal aliens like Huitron-Guizar, it cannot be said that ‘DREAM’ order aliens lie “largely outside the formal system of registration, employment, and identification, [or] are candidates for further misfeasance.”
‘DREAM’ order aliens will be more registered and traceable than most US citizens who don't even hold passports, making it substantially more difficult for courts to deny these aliens their Second Amendment rights even under the intermediate scrutiny standard. After all, ‘DREAM order’ aliens are going to be openly working and serving in our national community as teachers, business owners, firefighters, day care workers homemakers, and other vocations where they clearly will be part of “the people” with “substantial connections with this country” as explained in Verdugo-Urquidez.
Indeed the Tenth Circuit hinted in dicta that GCA 68’s ban on Second Amendment rights for even legally present non-resident aliens was constitutionally suspect by noting that
“[n]othing is this opinion purports to express an opinion on the Second Amendment rights of lawfully present aliens, yet we note that, since 1998, under this same statute, even those admitted on non-immigrant visas (usually issued to visitors for business or pleasure) are prohibited from having firearms and ammunition unless they secure a special waiver or happen to be hunters or diplomatic or law-enforcement officials here on business. . . . If the right’s “central component,” as interpreted by Heller, 554 U.S. at 599, is to secure an individual’s ability to defend his home, business, or family (which often includes children who are American citizens), why exactly should . . . aliens . . . be left to the mercies of burglars and assailants?”(emphasis added).
And gun rights leaders like Philip Van Cleave, President of the Virginia Citizens Defense League (VCDL), agree. “All people have the natural right of self-defense,” said Van Cleave. "The Second Amendment just secures the right to carry self-defense tools and should apply to all of the people unless they have been adjudicated mentally incompetent to possess a firearm or convicted of a violent felony.”
source: Obama
