As much as I suspect we both dislike states doing this, I don't think the fed has legal authority to stop them.

If the Federal Government were interested in enforcing our borders, they would strike down such laws. As of such, I don't believe a challenge has made it through the court systems, but I know California attempted to pass a law allowing illegals to get licenses.

Great argument!

"Your argument means that any government agent can stop, search..."

I did not say that. The Constitution very specifically forbids the abridgement of the rights of citizens - not non-citizens. But in another post I also specified that we accord our guests the same privileges as citizens until they abuse their status as guests. The Fourth Amendment presumes innocence and this should be the operating principle of law enforcement officers. Once, however, one becomes a suspect and there is a jurisdictional question, that jurisdictional question must be resolved. US Courts may assert authority over aliens, but those aliens can appeal to their respective consulate or embassy because the US has only secondary jurisdiction rather than primary jurisdiction. And jurisdiction is key.

"If indeed rights are independent of government the constitution, as a document intended to prevent government from abridging said rights must apply to all people in the government's jurisdiction."

I agree. The problem is that even according to the Framers of not only the Constitution, but the Fourteenth Amendment specifically, aliens are exempted from jurisdiction. Remember, rights come with responsibilities for use. If one fails in one's responsibilities of use, those rights can and will be curtailed. That is the definition of punishment. Rights are not unlimited. But in order to gain the protection of those rights, one also must swear allegiance to the principles of the Constitution of the United States, ie become a citizen, or they are granted no automatic protection by the Constitution! This was very clear to the Founders of the United States.

Regarding court precedent, this discussion should be instructive: http://therightscoop.com/mark-levin-i.... It lays out the intent of the Fourteenth Amendment and explains Jacob Howard's (co-author) explicit intentions regarding the bill. They discuss the Wo case there as well.

"The constitution as well as case law and arguments over the last couple hundred years all clearly demonstrate that any and all person in the "territorial jurisdiction" of the United States are afforded the same rights"

Actually, this is not true at all. All the cases to this point have been about legal aliens - not illegal ones, a point made clear by Mark Levine. Illegal aliens do not have protection because not only do they not fall under the jurisdiction of the United States, but they have violated the terms of guest status within the United States.

Further, as a logical rule, if one grants the rights of a citizen to anyone who manages to somehow deposit themselves inside a country's borders, one is inviting invasion. That's suicide of sovereignty. When aliens come to our country, they agree to abide by the terms of their visa and obey the laws of the land, and in return they are treated as guests. No such contract exists with illegals and it is sheer folly to afford them the same privileges - and especially rights - when they have openly flouted the laws with regard to entering our nation!

Are there not one or two, or more, states which will indeed issue drivers licenses to illegals? Or were those struck down?

Yes I think if you are born in China, you do not have the right to keep and bear arms. If you come the US and become a citizen, then you do. That is what I think.

So is spying on other countries unconstitutional?

Let me answer the question...again...that you think I'm avoiding. "No". Specifically because the officer has no basis or cause to detain and interrogate "someone walking down the street".

Now, let's go on to the actual question. If an illegal (not resident green card holder) should be offered second amendment rights. "NO". First they shouldn't be here, and they are NOT protected by the second amendment. So if we happen to identify one...let's say as a robbery suspect or as a illegal nanny carrying a handgun, they should have it confiscated, and then whatever the process is for them gets executed.

"The People of the United States ratified the Constitution - not the remaining population of the world."

That is not in dispute and is irrelevant to the question at hand. Who ratified is is not the same as whom what is ratified applies to.

Your argument means that any government agent can stop, search, detain, censor, discriminate based on sec, color, creed, etc., kill any and all non-citizens and so on for whatever reason the individual feels like because, as you assert, the individual has no rights.

I argue this is in opposition to the founder's concept of rights not springing from government but being inalienable. Whether you or I agree with that reasoning aside, that is what those who wrote the constitution reasoned regarding the origin of rights. If indeed rights are independent of government the constitution, as a document intended to prevent government from abridging said rights must apply to all people in the government's jurisdiction. To assert otherwise is to assert that mankind is not "endowed by his creator with certain inalienable rights" but that these are granted by government and can thus be applied selectively.

Regarding the right to self-defense, that's really not an argument. If you have a right to your life, you must have the right to defend it, by definition.

Indeed, note that you do not have a right to habeas corpus, but that according to the constitution it is a privilege - something granted by the state. That said it is held today to mean a right, so I'll refer to it as such here. This makes this particular one interesting because the SCOTUS addressed the question of said right regarding non-citizens when it ruled the Military Commissions Act could not deny that right to detainees at Guantamo. The decision clearly stated they had that protection - and nobody involved argued they did not. If the constitution's protections of rights applied only to U.S. Citizens this decision would be impossible to rectify with the constitution. Indeed, Scalia was very vocal about the constitution applying to people because they were in the U.S. jurisdiction - which is how this affected the decision.

The question in this case was not whether the detainees did not have the rights due to being non-citizens, but specifically that they were not inside the United States. I'm fairly certain that if the Justice Department and/or the administration had any reason to believe non-citizens were not afforded the protection of their rights that would have been the argument and it would have been, as they say, an "open and shut case". Reading Scalia's, and every dissenting opinion actually, reveals the same thing.

This understanding that the constitution is not limited to citizens only dates back in the SCOTUS to the late 1800s in Yock Wo v Hopkins when it wrote:

"The rights of the petitioners, as affected by the proceedings of which they complain, are not less because they are aliens and subjects of the emperor of China...". This case dealt with the 14th amendment as a limitation on the State government (as it was clearly intended). However, Wong Wing v. United States upheld that the fifth amendment's use of "persons" and not "citizens" extends "to all persons within the jurisdiction".

On that note, in order to read it as you do, non-citizens would have to be non-persons. Note that even in the 1880's the supreme court held that corporations were considered legal persons. The notion that in the 1880's the constitution applied to corporations, even foreign corporations, and citizens only thus excluding aliens is absurd untenable.

Indeed, the cases (such as the Guantanamo case mentioned above) which argue whether or not constitutionally protected rights are afforded to given person revolve around whether the person was/is within "territorial jurisdiction". This is the reason embassies and military bases are referred to internationally as "sovereign soil" of the holding nation as opposed to the host country. To be otherwise would prevent the application of "native" country law to embassy property due to lack of jurisdiction.

You can also see this understanding in the desire to keep terrorist detainees off of "American Soil". If Guantanamo was, for some strange reason, on embassy grounds there would have been no question of the applicability of constitutional rights to detainees there because embassies are legally the soil of the origin country.

Further, regarding the 14th the contestation of jurisdiction was specifically between federal and State jurisdiction, with intent of the 14th to make clear that being in a state doesn't remove the jurisdiction of the federal government regarding rights and "privileges and immunities". IN particular regard to privilege because not only Writ of Habeas Corpus is a privilege but so is voting and the authors wanted to ensure the states could not prevent blacks from the privilege of voting nor the equal protection under the law afforded by the constitution. It was not about citizens vs. aliens - that had already been known.

Indeed if you read the dissent in Slaughterhouse you'll find more support for the rights of man not being granted by government and that the 14th merely enshrined common law on that regard. While it was a dissenting opinion it was the opinion referenced and accepted by later courts.

And yes, private companies, and parties such as ourselves, have the right to establish rules regarding the use of their property but those rules have limits. For example, you can't simply shoot anyone on your property because they don't like rum, wore a yellow shirt, or happen to have skin of a different color. To say the governments of the union or the states can do so seems absurd to me and is certainly not in accordance with the notion that we have inalienable rights as opposed to ones granted by government benevolent wisdom.

The constitution as well as case law and arguments over the last couple hundred years all clearly demonstrate that any and all person in the "territorial jurisdiction" of the United States are afforded the same rights - but not necessarily the same privileges and immunities. Note the applicable phrase is "territorial jurisdiction" not "original jurisdiction".

Heck, it is even in movies. I don't recall the name at the moment but a Schwarzenegger movie where he played a KGB agent working in the U.S. with the aid of american authorities even had it correct when they made a punchline subplot where Arnold's character had to Mirandize even Soviet nationals while in the United States.

So yes, illegal aliens have the right to keep and bear arms just as you and I do, along with our other rights, just not necessarily the same privileges and immunities.

Perhaps, but again, the Second Amendment only restricts the Federal Government from abridging the rights of citizens. It makes no such qualification for non-citizens. Even the author of the Fourteenth Amendment - which is usually used to attempt to extend the basic rights to anyone on US soil - was very clear in stating that the Fourteenth Amendment only granted recognition of those rights based on jurisdiction - namely the jurisdiction of the United States.

Non-citizens are guests. They gain access to our hospitality by not abusing it. However, when a US Citizen travels abroad, they are subject to the firearms laws of the nation in which they travel - regardless of what their rights are as a US Citizen. The same applies to those visiting here.

The problem is jurisdiction. The Constitution, and by derivation devises a system of government for the People of the United States. It has no jurisdiction over any others. Does that mean that non-citizens have no rights? Not at all. But penalties for abrogation of laws are always subject to jurisdictional claims, and therein lies the rub. The Constitution doesn't have original jurisdiction over non-citizens.

Now is there a legitimate reason to treat anyone here in the United States as if they have the protection of the Fourth Amendment (the presumption of innocence)? I think there is - not only from a practicality standpoint but from reciprocity- and standards-viewpoints as well. That being said, however, once one is under suspicion of criminal action and it is divulged that they are not an American Citizen, the jurisdictional matters dictate that law enforcement tread a completely different path than when dealing with an American Citizen. That we may grant them guest privileges which begin with the privileges we afford our citizens is a good starting place, but these are privileges to the non-citizen - not rights. That distinction is critical.

STEVEDUNN - The fact that the government SAYS that criminals cannot posses firearms does not make it a valid statement. The fact that the government enforces their invalid statement doesn't make it valid, either.

how many ways are there to say this?
there is no such thing as a "right of citizenship".
There are rights which all human beings have, issued with their birthday suits, and [in theory] there are benefits of citizenship of a particular country.

Because humans have a right to life, they have an accompanying right to protect their lives, with the most efficient means possible. [hint: that's not 911]

BUT if one has a "right" to welfare, every one of us who works to provide that welfare card is turned into a slave, working for a goal we haven't chosen. No one has a right to anything which another person must provide for him.

This is a very dangerous combination and confusion of 2 completely different things. This confusion is how we get to mosquitoes possessing a right to life in Boulder, CO, and the woman on a video somewhere in here with some large number of kids [11? 18?] saying "somebody got to take care of these children!"

The fact that the public discourse on rights and "programs in place" is combined, confused, blended and dumbed down is even more reason to keep our discourse straight and correct.

The US Government decided that. [actually first, how do you define the word "criminal"?]
Anyway, it was the decision of the government on how people who committed crimes would be punished - they "lost" their rights. As long as they are human, they posses those rights. Using "the government said so" is "reason" that is as valid as "the tooth fairy gave me this quarter!"

Precisely. Even the author of that Amendment specified very clearly that original jurisdiction was the primary factor!

What you[[probably] don't have, if you are here "illegally', is the protection by the US Gobernment [it was a typo; I'm leaving it] of the rights which you carry as a human being.

Thoritsu -
1> rights are different from benefits. I'm only going to talk about rights, because I'm not sure what you mean by "benefits".

2> Rights aren't tied to a particular geographical location. Do you honestly think that if you or I had been born in, say, Canada, we would not have a right to keep and bear arms? What difference is there in a person that changes based solely on where they were born?
There isn't one. People are people.

There are no such thing as "US rights". There are rights. That's why, repugnant as it is, the discussion of those accused of terrorism and incarcerated at Guantanamo not having "US rights" was so silly.

What do you mean by benefits?
edited to be sure post reached proper recipient.

They cannot obtain a firearm from a licensed dealer (FFL) because the ATF form asks for citizenship. They can obtain one through a private sale, but only if the state issues them a driver's license, which essentially makes them legal. They certainly cannot bring one legally through the border.

I think that it would be inconceivable to apply different laws to non-citizens. Should murder or theft by a non-citizen be punished differently than if committed by a citizen? Should the right not to incriminate oneself not apply to non-citizens? Or the presumption of innocence? Yet, the supposedly guaranteed right to bear arms is denied without any thought whatsoever.

There is a difference between "can be", "may be" and "is".
The fact that rights are taken from people doesn't give that action any legitimacy whatsoever.

thank you! just what I was going to say.

The Second Amendment guarantees rights which people already have.

I have long thought that one's "permit" to buy, carry - and use - a gun if necessary would be a copy of the 2nd Amendment, pulled off a pad of them at the cash register and handed to you as part of your receipt when you buy one.

Also in support of this argument is the clause in the 14th amendment regarding "subject to its jurisdiction" specifically because non-citizens can consult an embassy or consulate.

And Floyd Ferris is counting on that to cash in what he thinks will be our guilt.

"Either the constitution referring to "people" or "the people" applies to anyone in the country, or it does not."

It doesn't. The Constitution opens with these words: "We the People of the United States of America". The People of the United States ratified the Constitution - not the remaining population of the world. Non-citizens can receive permission to come to our country as our guests, but how they are treated once they get here is as guests - not as citizens.

One of the problems with treating non-citizens as citizens is the problem of jurisdiction. The US can only prosecute offenses of our laws through primary jurisdiction for US citizens. For non-citizens, an appeal to an embassy or consulate may be made, relegating US jurisdiction to secondary jurisdiction. What is the result? For many, all we can effectively do is expel them from the country and blacklist them from re-entry - and we've seen how well that works under our current Administration.

Now, can one argue that the right to self-defense is a human right which supercedes government? That is certainly part of the question here. But what should be noted is that just as private companies have the right to dictate the policies of use of their properties by patrons/guests, so too do countries.

"... against the People (not just citizens)."

Uh, not so. The very first words to the Constitution define what People means and it clearly states in VERY large letters: "We the People of the United States of America."

I would also point you to what many of the founders stated about whom they were referring to when they wrote the Constitution (). Hint: it did not include non-citizens.

Does that give the government the liberty to do whatever it wants to those visiting our nation? That all depends on how we want to treat these guests and if we want them to come back. We can be good hosts and only bother them when they break our rules, or we can refuse them entry in the first place. But they are our guests - not our citizens.