ACLU Sues to Protect Immigrant's Gun (carry) Rights From Change in South Dakota Law

[eye95]

Being silent on visibility to me does not give legislatures a "pass" upon enacting laws against concealment...

Of course it does. The 2A says nothing about walking around carrying the arms in your hand, yet many jurisdictions outlaw the practice. Good.

The 2A is silent on brandishing, so governments are free to restrict or license brandishing.

The 2A is silent on concealment, so governments are free to restrict or license concealment.

Again, as long as the law does not make the carry or possession of a firearm appreciably more difficult, it is not violating the letter or intent of the 2A.

 

[eye95]

If the ACLU was doing this to gain gun rights for illegals, why would they choose SD as the battle ground?...

If the camel wanted into the tent, why would he stick only his nose in?

 

[Jared]

If the ACLU was doing this to gain gun rights for illegals, why would they choose SD as the battle ground?

Surely, if that was the case, they'd file suit in a state that already issues CPLs to legal resident aliens. For example WA or even your home state of Alabama.

Edit to add: There are at least 20 states that will issue to permanent residents (greencard holders).

There are more states that issue to resident aliens, including non-immigrant aliens. The problem with the way this is being presented is that people are going to think that only greencard holders will be able to get a permit. Non-immigrant aliens would have to be covered as well. Strict Scrutiny still applies.

The only states that restrict permits to citizens are

Hawaii
Montana
New Mexico
South Dakota
Nebraska
Oklahoma
Louisiana
Arkansas
North Carolina
Mass (residents must be citizens, non-residents can be any legal alien)
Missouri
Oregon (non-residents only, residents must state that they intend to become a citizen)

Virginia and Michigan claim they will only issue to resident aliens (I-551), but this would be subject to the same scrutiny as Smith v Nelson and as the Say case in Kentucky was.

 

[Jared]

And, stipulating CC as privilege, denying cc to a legal resident alien and not to a citizen is like denying a driver's license to a legal resident alien.

It does look like a solid case, where the legal resident alien does not have equal protection of the law.

This is exactly right. Some are confusing the issue as a 2nd Amendment issue. While it is, it is being challenged under equal protection.

Any equal protection claim is subject to strict scrutiny as it applies to a suspect class.

 

[Jared]

First let me try to bust an axiom that most people hold: There is nothing wrong with discrimination. We do it all the time. Saying someone has discriminating tastes is actually a compliment. Racial discrimination got folks thinking that all discrimination is wrong. It isn't.

What makes discrimination immoral is using inappropriate criteria in order to disadvantage one group for nefarious or ignorant purposes. Citizenship is a perfectly reasonable criteria to use for discrimination. We do it for the privilege of voting, for example.

Whether or not discrimination against non-citizens for the privilege to conceal is a policy-type law decision that should be made by the legislature, not the courts. Personally, I'd prefer that all law-abiding, sane, and sober adult persons should be permitted to conceal as a matter of policy. However, that is not a hill I'd die on.

The courts have consistently said otherwise. It's not a decision for the legislature's as you put it. It's a 14th Amendment issue, even if CCW is a privlilege, it's still subject to the 14th amendment and strict scrutiny is required.

You mentioned voting, but the constitution clearly says citizen for voting, that makes a huge difference.

 

[NavyMike]

Snip

What makes discrimination immoral is using inappropriate criteria in order to disadvantage one group for nefarious or ignorant purposes. Citizenship is a perfectly reasonable criteria to use for discrimination. We do it for the privilege of voting, for example.

Whether or not discrimination against non-citizens for the privilege to conceal is a policy-type law decision that should be made by the legislature, not the courts. Personally, I'd prefer that all law-abiding, sane, and sober adult persons should be permitted to conceal as a matter of policy. However, that is not a hill I'd die on.

And now that the legislative branch has made a law, it will be tested in the judicial branch. Isn't that part of the checks and balances that this nation's governing structure is founded upon?

You are right about discrimination. Alienage may possibly be a justified grounds to discriminate, in some cases. The litmus test will be in court where it will be subjected to strict scrutiny. Assuming, of course, that SD does not change the law before a court can rule.

 

[eye95]

This is exactly right. Some are confusing the issue as a 2nd Amendment issue. While it is, it is being challenged under equal protection.

Any equal protection claim is subject to strict scrutiny as it applies to a suspect class.

We deny the privilege of voting to legal resident aliens. That is lawful.

Some forms of discrimination are perfectly lawful--including discrimination against legal resident aliens.

 

[eye95]

The courts have consistently said otherwise. It's not a decision for the legislature's as you put it. It's a 14th Amendment issue, even if CCW is a privlilege, it's still subject to the 14th amendment and strict scrutiny is required.

You mentioned voting, but the constitution clearly says citizen for voting, that makes a huge difference.

The Constitutions does not say that only citizens may vote. It contains several protections for citizens that it does not have for others, but it does not prevent States from extending the vote to non-citizens. That is a policy decision made by the States.

 

[eye95]

And now that the legislative branch has made a law, it will be tested in the judicial branch. Isn't that part of the checks and balances that this nation's governing structure is founded upon?

You are right about discrimination. Alienage may possibly be a justified grounds to discriminate, in some cases. The litmus test will be in court where it will be subjected to strict scrutiny. Assuming, of course, that SD does not change the law before a court can rule.

Testing law in the courts should not extend to the courts making law because that's the way they think it should be. Most here would agree with that statement and get very upset when the courts legislate from the bench. Yet, somehow, when they agree with the result, legislation from the bench becomes OK. Go figger.

 

[NavyMike]

If the camel wanted into the tent, why would he stick only his nose in?

Still doesn't answer the question. Why SD, if it could pick one of 20+ states that already allow CPL for green card holders. Surely, if their objective was to get from green card holders' rights to gun rights for illegals, the ACLU would choose a state out of the list of 20+.

 

[NavyMike]

Testing law in the courts should not extend to the courts making law because that's the way they think it should be. Most here would agree with that statement and get very upset when the courts legislate from the bench. Yet, somehow, when they agree with the result, legislation from the bench becomes OK. Go figger.

No kidding, the losing side will often claim the judge(s) were legislating from the bench. It's not perfect but someone has to be the check and balance. Might as well be the judges, because the politicians won't do it to themselves.

 

[eye95]

No kidding, the losing side will often claim the judge(s) were legislating from the bench. It's not perfect but someone has to be the check and balance. Might as well be the judges, because the politicians won't do it to themselves.

It is easy to tell when the court is legislating. If it is a matter of policy, the court has overstepped. One way I am different from others is that I am willing to call it legislation from the bench even when I agree with the outcome.