ACLU: Non-Citizens Have Right to Carry Concealed Weapons

[krucam]

According to the complaint, he is a lawful permanent resident of the "Untied States of America".

They couldn't run a spell check?

 

[Bob A]

Spell check is one thing; stupidity check is something else. "Untied" is not a misspelled word.

 

[joppaj]

Bad spellers of the world, UNTIE!

 

[traveller]

They couldn't run a spell check?

These kinds of errors are often enough the RESULT of running a spell-check.

 

[Patrick]

Bad spellers of the world, UNTIE!

They couldn't run a spell check?

These kinds of errors are often enough the RESULT of running a spell-check.

Tell me about it. This iPad drives me nuts. It's nearly impossible to write legal terms...I guess Latin is not cool with the in crowd who use these things.

 

[Josey Wales]

I was under the impression that the ACLU did not involve itself in gun related issues ?

 

[rch184]

The ACLU is an enemy of this country, with its founders rooted deep in socialism. They are not concerned with our freedoms as free Americans or intent in securing our civil liberties under the U S Constitution. God Bless America!

 

[Patrick]

I was under the impression that the ACLU did not involve itself in gun related issues ?

It's not a military chain of command. Local chapters have individually supported gun rights where the locale makes sense. The national leaders just look aside.

The ACLU is an enemy of this country, with its founders rooted deep in socialism. They are not concerned with our freedoms as free Americans or intent in securing our civil liberties under the U S Constitution. God Bless America!

One of the problems we have as a society is that of absolutism. Your statement - while parroting the general mood of many on the right - is deeply flawed on a factual basis. Even though I am no fan of the politics of the people running that show, I recognize the historical significance of many of the ACLU fights of the past and present, and appreciate the lines drawn under their watch. And so do you, even if you do not know it or give credit where due.

No organization is perfect. But when it comes to civil rights, the ACLU has done a damn lot of good over the past several decades. I can give them some credit, even while criticizing their approach to 2A issues.

The fact is simple: if the ACLU supported 2A the way they support other rights, we would have behind us a powerful and capable ally with a strong record of success. They would be instant heroes of this movement.

 

[krucam]

In response to the Lawsuit, SD lawmakers move to open concealed weapons law to legal residents.
http://www.necn.com/01/25/11/SD-law...ockID=3&apID=37d9365847774ec3b7468a03858bc779
They're trying to wiggle out of the lawsuit...


And on a lighter (but true) side, SD legislators initiate legislation to REQUIRE everyone to BUY A GUN...saying if you can do it with Health Care....
http://www.huffingtonpost.com/2011/02/01/south-dakota-individual-mandate-guns_n_816772.html

 

[ezliving]

In response to the Lawsuit, SD lawmakers move to open concealed weapons law to legal residents.
http://www.necn.com/01/25/11/SD-law...ockID=3&apID=37d9365847774ec3b7468a03858bc779
They're trying to wiggle out of the lawsuit...


And on a lighter (but true) side, SD legislators initiate legislation to REQUIRE everyone to BUY A GUN...saying if you can do it with Health Care....
http://www.huffingtonpost.com/2011/02/01/south-dakota-individual-mandate-guns_n_816772.html

 

[Patrick]

...

And on a lighter (but true) side, SD legislators initiate legislation to REQUIRE everyone to BUY A GUN...saying if you can do it with Health Care....
http://www.huffingtonpost.com/2011/02/01/south-dakota-individual-mandate-guns_n_816772.html

OK, I called that one a few days ago. Too bad I didn't do it online.

Makes sense.

I also expect a few bills forcing people to buy Broccoli and GM cars (the two most often cited examples of how the Individual Mandate could be further abused).

 

[ezliving]

And on a lighter (but true) side, SD legislators initiate legislation to REQUIRE everyone to BUY A GUN...saying if you can do it with Health Care....
http://www.huffingtonpost.com/2011/02/01/south-dakota-individual-mandate-guns_n_816772.html

Mandatory gun ownership has worked well in Kennesaw, GA since 1982.

 

[HardHatMan]

Mandatory gun ownership has worked well in Kennesaw, GA since 1982.

That doesn't mean it is right.

 

[annihilation-time]

That doesn't mean it is right.

True: one has the right to bear arms or not to.

 

[krucam]

An evidentiary hearing was scheduled/held on 1/27.

Since then, the Defendants rolled out some MTD's, around 2/8.

Yesterday, drum roll please....

ORDER GRANTING
PRELIMINARY AND
PERMANENT INJUNCTION



That was quick...filed to finished in just over a month!

 

[Inigoes]

ORDER GRANTING
PRELIMINARY AND
PERMANENT INJUNCTION

this little gem on the bottom of page 6:

When a state discriminates against a suspect class, however, courts
review the discrimination according to the “strict scrutiny” test. Under the
strict scrutiny test, a state’s discrimination can only be allowed to continue if it
“advance a compelling state interest by the least restrictive means available.”

Bernal v. Fainter, 467 U.S. 216, 219 (1984).

 

[traveller]

An evidentiary hearing was scheduled/held on 1/27.

Since then, the Defendants rolled out some MTD's, around 2/8.

Yesterday, drum roll please....

ORDER GRANTING
PRELIMINARY AND
PERMANENT INJUNCTION



That was quick...filed to finished in just over a month!

The lawsuit is not over. If the state really wanted to pursue this they could force a trial and/or appeal it.

But last I heard, the legislature may pass a law to rescind the provision.

 

[krucam]

The lawsuit is not over. If the state really wanted to pursue this they could force a trial and/or appeal it.

But last I heard, the legislature may pass a law to rescind the provision.

Meh...you're confusing SD with MD/CA/NY/IL...it won't be appealed, $20 to MSI if I'm wrong, hell $20 if I'm not.

 

[Patrick]

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 they 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 argue that their "police powers" reduced the standard of scrutiny to that of rational basis.

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 everyone 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 Woollard case has taken. 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 based on an inarticulate public-safety argument failed.

 

[krucam]

A bunch of good stuff...

Thanks, as always...