U.S. District Judge Sharon Johnson Coleman’s ruling that an illegal immigrant’s Second Amendment rights were violated when he was charged with possessing a gun in violation of federal law has divided the 2A community and even led a group of Illinois Republicans to introduce a gun control bill in the state legislature.
As columnist Randy Gibson writes, the ruling has left both sides in the gun control debate stymied and perplexed, though I’ve noticed that most of the gun control groups have decided to simply ignore what Coleman had to say. Conservatives like Gibson, on the other hand, are much more interested in discussing the implications of the case, and I think his attitude is shared by a lot of folks on the right.
Moderate conservatives like me believe in upholding the Second Amendment and protecting the rights of law-abiding citizens to own firearms, but the issue of extending these rights to individuals who have entered the country illegally presents a complex challenge.
It is essential to recognize that the Second Amendment is a fundamental right enshrined in the Constitution, intended to protect the individual’s right to self-defense and ensure the security of a free state. While this right should be safeguarded, it is crucial to consider the implications of extending this protection to individuals who are in the country unlawfully. They are already breaking laws by being here illegally, and it’s the law-abiding citizens who have the rights under the Constitution.
I don’t know if Gibson realizes this, but he’s now adopted the very position of Joe Biden’s Justice Department; only “law-abiding citizens” possess the right to keep and bear arms. On the surface, that might sound unobjectionable. But what constitutes law breaking? If you run a stop sign, you’re technically breaking the law. If you use medical marijuana in Oklahoma, where Gibson lives, you’re breaking federal law.
A few years ago Harvard professor Harvey Silverglate wrote a book called “Three Felonies a Day: How the Feds Target the Innocent” that discussed in detail the thousands of federal laws that are on the books, and how impossible it is for many folks to know whether or not they’re actually committing a crime over the course of their daily routine. I’d be very cautious asserting that only “law-abiding citizens” get to exercise any of the rights enshrined in the Constitution, including our right to keep and bear arms.
I’ll assume for the sake of argument that Gibson doesn’t think a speeding ticket or a fine for littering should lead to the lifetime loss of our Second Amendment rights, but where does he draw the line? Felonies? Violent felonies? Any crime punishable by a year or more in prison? Any crime punishable by deportation? Should rights be limited to citizens only, regardless of their lawful or lawless status?
Gibson’s column is titled “2nd Amendment Ruling a Chess Game”. That may be right, and Coleman could very well have crafted her opinion with an eye towards riling up conservatives, but if that’s the case then Gibson himself has fallen into her trap; aligning himself with Merrick Garland and those DOJ attorneys who are asserting in courts around the country that guys like Bryan Range (who received a probationary sentence for lying about his income on a food stamp application decades ago) and Darnell Daniels (who was sentenced to 46 months in federal prison after he admitted to regularly using marijuana as a gun owner) don’t have any right to keep and bear arms because they’re not “law-abiding citizens”.
The better argument to make is that illegal immigrants are not a part of the “political community”, and therefore are not part of “the people” whose right to keep and bear arms shall not be infringed. As Second Amendment attorney Kostas Moros recently argued:
As the Supreme Court explained in D.C. v. Heller, “the People” is a term that “unambiguously refers to all members of the political community.” It “refers to a 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.”
Someone who just entered the United States illegally has not developed any sufficient connection with the country.
Now, it certainly can be more complicated than that; what about someone here for a decade or more? Perhaps he has started a family, is gainfully employed, and even pays taxes. Or what of DACA recipients, who have attained a sort of quasi-legal status? It’s hard to argue that such people are unambiguously not members of the political community. The question of whether illegal immigrants are thus part of “the People” would seem to sometimes be a heavily fact-based determination. Perhaps the best way to test it is that someone who is unlawfully present is presumed to not be a member of the political community, but may rebut that presumption through their particular circumstances.
There are well-reasoned arguments rebutting that position, but for those who want to find fault with Coleman’s ruling I’d say that Moros’s take is the most solid ground for them to stake their claim. It’s certainly a far better approach than blithely asserting that only “law-abiding citizens” can exercise their Second Amendment rights. Adopting that position could have some severe consequences for tens of millions of responsible gun owners… and could very well lead to the gun control lobby declaring “checkmate” when broad swathes of the public are prohibited from possessing a firearm thanks to a routine traffic stop or minor brush with the law.
