Illegals/Guns

Mar 19, 2024, 10:51 AM

Pretty interesting question that strikes right to the heart of how you view constitutional rights.

Constitutional rights are negative rights, meaning they aren't rights bestowed upon citizens by the government, but rather direct restrictions on how/when government can limit what are the natural rights of free individuals. In this sense, the right begins with its maximum expression, and any encroachment upon them has to be justified. Some of this encroachment happens at the origin; think social compact, or Thomas Paine's Common Sense about government's encroachment being a necessary evil ("badge of lost innocence"). Other encroachment happens over time, for better or worse. An example of this would be background checks for firearms.

Nonetheless, the existential nature of constitutional rights as a negative right do not change.

But beyond the origin of rights (natural vs. government-given), a crucial distinction of natural rights mean they're not "for citizens only." That's a hard pill to swallow — understandably — because it is pretty much ingrained that these are "American rights." Superficially, that's true in the sense that our written Constitution is uniquely American, as is the breadth of rights that we enjoy. But it's also a misnomer, as it frames negative rights as positive rights. If you have to be a citizen to enjoy them, then citizenship -- a "blessing" of government -- becomes a prerequisite for fulfillment of rights that are naturally occurring to all humans. In effect, believing constitutional rights only belong to U.S. citizens undermines one of the most sacrosanct principles of constitutional liberty.

So, if you believe that non-citizens are not allowed to exercise their Second Amendment rights, you are saying that the Second Amendment (as well as the rest) are government-granted, positive rights. There's not another way around that at a fundamental level.

Now, one could argue (quite reasonably, and I suspect this is where the ruling will fail on appeal) that one of the "necessary" encroachments that we have as a society generally accepted (to some degree) is that background checks are necessary to keep guns out of the hands of people who should not have them. It would be impossible for an undocumented person to pass a federal background check, and thus by default, they would not be able to purchase a firearm otherwise, so how could we allow someone to possess something they would be not able to legally purchase.

This gets a little prickly because it then it sets up potential contradictions with people who are hardliners on background checks. It also potentially strays into the debate around universal open carry. And, ultimately, we still have the issue of positive/negative rights...but that is what makes this particular case not so clear cut.

I suppose the right answer is that this falls into what we consider a reasonable encroachment, but it is, philosophically, an encroachment nonetheless. However, a true Second Amendment maximalist would have to agree with the ruling, as the government has no right to stop an individual peacefully exercising his natural right to self-preservation (codified as the Second Amendment).