(Hat tip to Dan Gifford)
Reuters reported:
“Executing a search warrant in 2010, police uncovered a semi-automatic handgun in Bravo Flores’ Minneapolis apartment. A grand jury indicted him for being an alien in possession of a firearm in violation of federal law. He was sentenced to three years in prison.”
(What is curiously omitted is that police also found “five pounds of marijuana, and small quantities of both cocaine and methamphetamine.” He wasn’t prosecuted as a drug dealer in possession of a firearm, which would have enhanced federal sentencing. See U.S. Code, Title 18, Section 924, Subsection (c), which requires a prison sentence “of not less than 5 years.”)
Flores appealed to the Eighth Circuit Court of Appeals, which upheld his conviction:
“Joaquin Bravo Flores was indicted on a charge of being an illegal alien in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(5)(A) and 924(a)(2). Flores moved to dismiss the indictment, arguing that § 922(g)(5)(A) was facially unconstitutional in light of District of Columbia v. Heller, 554 U.S. 570 (2008). The district court denied the motion, and Flores appeals. Agreeing with the Fifth Circuit that the protections of the Second Amendment do not extend to aliens illegally present in this country…we affirm.”
U.S. Code, Title 18, Section 922 says:
“(g) It shall be unlawful for any person—(5) who, being an alien—(A) is illegally or unlawfully in the United States…”
U.S. Code, Title 18, Section 924 says:
“(2) Whoever knowingly violates subsection (a)(6), (d), (g), (h), (i), (j), or (o) of section 922 shall be fined as provided in this title, imprisoned not more than 10 years, or both.”
Heller struck down the draconian D.C. handgun possession ban, but also concluded: “Like most rights, the Second Amendment right is not unlimited.” For example, the Supreme Court wrote: “The Court’s opinion should not be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons…”
Which takes us back to Flores. Federal law requires immigrants to take such actions as registering and possessing entry documents, among other things. Flores chose to violate federal law, making himself a criminal. Banning firearms possession by a premeditated and long-time criminal is well within the Heller ruling, and the courts made the right call.
Now here’s the hook: Flores was represented by “Federal defender Andrea George.” So, Flores got his day in court, and American taxpayers footed all attorney and court costs.
So, did he cop-a-plea to the illegal possession of a firearm if the DOJ dropped the drug trafficking? Public defenders get paid whether they go to court or not; it’s not a pay for performance package. Of course, if you cop-a-plea, you’re admitting to the guilt and facts of the matter, so how could he appeal?
“Flores appealed to the Fifth Circuit Court”????????
The Fifth Circuit, based in New Orleans, has jurisdiction over Louisiana, Mississippi and Texas. Not Minnesota, which is in the 8th. Nor can one appeal from one Circuit to another, but only from a three-judge panel to the full Circuit sitting en banc, or to the Supremes.
If they skipped drug charges on the theory that just a conviction would get him a permanent deportation, then I don’t care. It’s possible that this was the only part of the matter appealed, and severed from the drug charges, which why they go apparently unmentioned.
If you look at the cited report, you’ll see the only conviction was for gun possession. It appears the drug offense was ignored. So he actually appealed his entire conviction.
“Finally, a sensible higher court decision, but at a cost.”
How so? If you understand anything about the motives about the founders when drafting the constitution it’s the concept of natural law. We have these rights because of our creator. These are UNALIENABLE rights, and that includes the whole bill of rights. We have the rights because we are human, not because someone permits us these rights.
How is taking these rights away from any person a sensible higher court decision? Is taking away illegals the right to free speech sensible too? It disturbs me that you’d think this way and it shows a fundamental lack of understanding of what the founders were trying to create.
The Constitution of the United States does not apply to those who are not American citizens (by birth or naturalization), any more than the Constitution of, say, Canada applies to people who are not citizens of Canada.
The point is that the constitution does not grant rights to anybody. Rather, it recognizes rights that people possess simply by existing.
Then of course, you support giving al-Qaeda terrorists their Miranda Rights, which are part of American due process, as guaranteed by the Constitution?
If you support giving those without American citizenship 2nd Amendment rights, then you must also support giving them 5th and 14th Amendment rights.
I suppose you also support giving illegal aliens the right to vote in our elections?
Again, if you support giving illegal aliens 2nd Amendment rights, you of course must support giving them rights under Amendments 15, 19, 24, and 26.
As you can see, it’s quite the can of worms you’ve opened up there. Perhaps you’d like to attempt to re-can them now?
Does the constitution grant rights or does it recognize pre-existing rights is the question at hand. I addressed no other issue.
That’s a good point, and off-topic here. With rights come responsibilities. Flores wants the former without the latter. There’s no free lunch, even with God-given rights. Modern liberals love the idea of their rights, but they think freedom means they can do whatever they want, whenever they want to, with whomever and wherever they want. This is an infant’s idea of freedom.
The Founders risked their lives, fortunes, and sacred honor to build a home for our Constitution. We have denigrated it by enjoying too much free freedom, and the country is spiraling downward because of it. We’re the spoiled children of the prosperity created by the principles enshrined by the Founders, but because we haven’t suffered like them we don’t appreciate what we have. So we fritter it away like Prodigal Sons and Daughters, or Royal Brats.
We sit at a computer made with materials and technology we don’t comprehend, thinking that a keyboard and internet connection makes us wise. We’re fiddling while Rome burns, but soon it will be our own lives burning if we don’t start taking the responsibility part of the equation more seriously.
My beef is still with your wording that these unalienable rights should be subject to removal. You may as well open yourself up to hundreds of excuses not to let people have 2nd amendment rights with that comment. You’re shooting yourself in the foot, believe me.
If you cannot be trusted with 2nd amendment rights, you should not be free to walk the streets of the US. This is not a question of illegal immigrants not having 2nd amendment rights, because all humans have a right to protect themselves. This is merely a question of the illegal immigrant not belonging on US soil. The buck stops there. The 2nd amendment right is moot if they are removed from US soil, which they should be. Don’t confuse the issues.
Might I suggest that possession of a firearm while committing a crime is in itself a crime? Mr. Flores is an illegal alien. He was committing a CRIME at the time, to wit, being in the country illegally.
Even the state of Vermont, which never had a “Mommy, may I?” gun permit system, recognizes in its laws that while possession of a firearm, openly or concealed, is legal because there has never been laws restricting this, you cannot possess a firearm while committing a crime. If you do, the gun possession charge will be added to whatever crime you are being tried for.
The nature of Mr. Flores’ crime is ongoing. That is, as long as he is in the country ILLEGALLY, he is in the act of committing a crime. If he owns or has possession of a firearm or has one in his house, apartment, car, or other conveyance, he is committing a separate crime. I don’t see how that interferes with what our Founding Fathers had in mind when they drafted our Constitution.
When he claimed the rights of a citizen while derogating the responsibilities, his hiding behind the Constitution became moot. We have the rights we have because we’re Americans, people who have committed to knowing the sacrifice and responsibility needed to live in Liberty. Flores is a parasite who neither understands nor cares about these finer truths. Do you?
Mr. Nemerov:
Your description of Mr. Flores (Flores is a parasite who neither understands nor cares about these finer truths.) all of a sudden bears a striking resemblance to a well-known political figure. I will not give any names. However, his antics, which includes using tax dollars to hide his background, gives me sufficient probable cause to suspect that he may also be an illegal alien.
Here’s a fine truth. If the paperwork violations which make him an illegal immigrant are not felonies, then this decision was incorrect. Constitutionally protected liberties may only be restricted on conviction for a felony.
The better way to deal with Flores is not the derogation of the 2nd amendment or its ends, but with the prompt deportation of Flores.
If in fact he was only convicted of being an alien in posession, and not in fact of being an illegal immigrant as a felony, then the prohibition against his being armed is unconstitutional.
You forget that Title 18, Section 922 bans illegal immigrants from firearms possession. That reference above uses the word “unlawfully”. Illegal immigrants have already shown disdain for our laws. Why should they have the same Constitutional rights as citizens, when people like Flores have already demonstrated a lack of interest in becoming a citizen? Instead, he sucks up our tax dollars selling drugs and using our court system to repeatedly promote his purely selfish desires. He’s not citizen material. The Constitution acknowledges God-given rights to American citizens, and those who respect our laws, including legal immigrants planning to become citizens and resident aliens here for lawful purposes.
Your comment begins to trend us towards UN oversight of our Second Amendment. By giving non-Americans the same rights a American citizens, you support the principle that everybody in the world has the same vested interest in our Constitution. This is what anti-rights judges like Breyer promoted when he ruled against Heller. I advise you to reconsider your position.
“You forget that Title 18, Section 922 bans illegal immigrants from firearms possession. ”
Which law is constitutionally unsound unless being convicted of being in the country illegally is not a felony. Nothing else you’ve said or claimed trumps that.
“Your comment begins to trend us towards UN oversight of our Second Amendment.”
So in your mind, actually respecting the constitution is the same as somehow giving the UN authority? That’s a curious opinion.
“I advise you to reconsider your position.”
I advise you to actually read the constitution and it’s history with an eye to the circumstances under which it permits constitutionally recognized rights to be abridged. To my knowledge, this can only be done as a result of a conviction for a felony.
Nice try, but it’s you who appears to not understand the value behind the Constitution. And it’s you who believes that anybody in the world can lay claim to the rights enumerated by the Constitution. So it’s you who derogates the meaning of being an American citizen, just like the UN-loving, Liberty-hating modern libs.
Uh huh. So you’ll be citing which part I got factually wrong when?
1) The right to be armed is a universal human right, one recognized by the constitution as one which the federal government (in the 2nd) and no other government in the jurisdiction of the constitution (the 14th), can abridge without conviction of a serious crime by a jury (5th and 6th, bill of attainder clause, etc.).
2) Flores hasn’t been convicted of being in the country illegally, but of not proving his legality while exercising his constitutionally recognized universal human right to be armed. If he had been convicted of being in the country illegally, it still couldn’t trump his 2nd amendment protected universal human rights, because it is not a felony. (If it is a felony, that would change, then it would be constitutionally fine to abridge in law his universal human rights to be armed.)
Constitutionally, it would be better to deport him gun in hand.
Say, Howard, are you one of those idiots who think that in “enumerating” rights the Constitution creates them?
“can abridge” != “can not abridge”
Here is an excellent example of how the self-appointed purists, in their ideologically-induced blindness, actually carry water for the statists. In a move playing right into the race-baiting ‘community activists’ and ‘immigrant rights activists’, they use a criminal to promote their ideology. Never mind the long-term consequences of destroying the Constitution by playing to this lowest common denominator. Never mind that giving criminals the moral equivalence of law-abiding citizens prepares the way for government to consider us all criminals. Never mind that the goal of said activists is not only civilian disarmament, but also the destruction of the Constitutional rights some of us still hold dear, and who understand their value and the need to preserve them through whatever means necessary at a given time in history.
But then again, if you follow the ends of ‘right’ and ‘left’ far enough, they bend around to meet in statism. So Tom’s diatribe shouldn’t be much of a surprise. More like an admonitory lesson.
Tom is right on one point only. For American citizens, the Second Amendment bar should rise to felony conviction, though with evolving family case law that bar can drop as far as restraining orders or allegations of domestic violence.
“Here is an excellent example of how the self-appointed purists, in their ideologically-induced blindness, actually carry water for the statists.”
Fantastically blinkered for you to be writing that when you are talking about removing from someone a universal human right before they have been convicted of a crime to justify it. Your counter-arguments amount to, “It’s convenient, the government gets to do it.” You’re empowering the statists here, by claiming the government doesn’t have to follow the rules.
“Never mind the long-term consequences of destroying the Constitution by playing to this lowest common denominator.”
What destroys the Constitution is ignoring it like you are doing.
“Never mind that giving criminals the moral equivalence of law-abiding citizens prepares the way for government to consider us all criminals.”
That hasn’t been proved here. It’s almost certainly true, that’s beside the point–this is not supposed to be a country where have the punishment first and the trial second.
“Never mind that the goal of said activists is not only civilian disarmament, but also the destruction of the Constitutional rights some of us still hold dear, and who understand their value and the need to preserve them through whatever means necessary at a given time in history.”
So why are you helping the Brady Bunch by supporting the government in disarming someone it has no lawful power yet to disarm? No, I don’t think you understand their value at all.
“For American citizens, the Second Amendment bar should rise to felony conviction, though with evolving family case law that bar can drop as far as restraining orders or allegations of domestic violence.”
The 2nd amendment is a blanket prohibition on the government disarming all person within the jurisdiction of the Constitution. The only level of crime which has ever justified such is conviction of a felony. You’ll need to point out when that changed. And your evident acquiescence with other “disarming” clauses and contexts in 922 show what you really think of the Constitution–that it is no bar at all to whatever laws the Congress decides to pass.
“But then again, if you follow the ends of ‘right’ and ‘left’ far enough, they bend around to meet in statism.”
Sorry, you’ll have to do more to spell out how depriving the government of the power to disarm people arbitrarily supports statism.
I’ll keep the nice bright constitutional lines of my ideology and the liberty they bring, thank you, you can keep your convenience.
Whatever. If you feel the need to project your own shortcomings on me, so be it. Isn’t it about time for you to tell me to pluck a chicken or something?
Translating that for everyone else, Mr. Nemerov realize how very badly he stepped in it by appearing to give credence to the provisions of 922 which unconstitutionally strip actual US citizens of their 2nd amendment rights, so he’ll devolved his argument to pure distraction and hyperbole.
Smoke and mirrors won’t pluck that chicken, Howard.
Nice try Lib!!
Because of D.W’s. like you this country is on the last circle down at the bottom of the potty!
Thanks for that bulletin from the bewildered doctrinaire pedants on Mt. Olympus otherwise known as our Federal Courts. Hopefully the next breakthrough will be that they discover which country they’re in.
Hopefully they’ll someday get over their obsession with acting out the exact opposite concept of straightforward, as in dropping this guy out a plane over Ecuador with a chute. Or not, as they prefer.
These remarks are directed toward Daniel’s post.
Yes, our founders felt (and stated) that all people, not only citizens of the US have certain rights, and that among then is the right to self-defense. The right to arms follows logically. So yes, law-abiding people, including aliens, have a right to keep and bear arms. But, commission of a crime removes some of these rights whether you are a citizen or not; for example, you do not have the right to defend yourself against a police officer if you are caught committing a crime. Mr. Flores was in this country illegally. That is a crime, whether or not you or I think it ought to be. Therefore Mr. Flores was committing a crime and had no right to arm himself under law. Yes, he had a right to a competent defense and such was provided. The court ruled correctly under the laws as they stand.
My guess is that they failed to use the charges that would net him more time behind bars because that is the pattern. Catch and release illegal alien criminals. Short detention, drop them off at the border so they can return again in just a few days and resume their crime spree.
This article needs to be proofread more carefully.
1. “Flores appealed to the Fifth Circuit Court, which upheld his conviction.” As Bohemond wrote, the Fifth Circuit court is based in New Orleans and thus would not hear an appeal for a federal court case out of Minnesota. The linked Reuters article states that the appeal was heard in the Eighth Circuit, which does cover Minnesota.
2. “Flores then appealed to the U.S. Court of Appeals, which concurred: …”
This sentence makes no sense. The Fifth Circuit, Eighth Circuit, etc. are all U.S. Courts of Appeal.
3. The original Reuters Article referred to another case in which an immigrant in possession of a firearm was arrested in Texas, who then appealed his conviction to the Fifth Circuit.
Looks like you’re right. Flores appealed to the 8th Circuit Court of Appeals, which referenced the Fifth ruling. Should read “Flores appealed to the Eighth Circuit Court of Appeals, which upheld his conviction.” See if I can change that. Thanks.
Fixed.
the principles of the constitution does not end with american citizens. I already explained this in my post. The founders believed rights existed as given to us by our creator. Do illegal immigrants not have a creator?
Nice try. So you’re using illegal immigrants to destroy the fabric of the Republic via the feel-good ‘human rights’ gambit. If illegal immigrants have a Creator, then as Soul each one knows he’s responsible to treat others with respect. This is a lesson that has yet to dawn on drug dealer and repeat offender Flores, and upon you as well. Side with the enemy, be the enemy.
“So you’re using illegal immigrants to destroy the fabric of the Republic via the feel-good ‘human rights’ gambit.”
No he’s not using illegal immigrants to destroy the fabric of the Republic. You are trying to use over the top hyperbole to cover for your not having a good counterargument. The 2nd amendment protects the right to be armed, a fundamental a human right, one we have by virtue of being human. It is not dependent on being a citizen. Neither my rights nor your rights suffer if the right of an illegal immigrant to be peaceably armed is respected–we have other political rights which suffer from them being here, which is why they should be deported.
Not respecting the Constitution destroys the fabric of the Republic, I can’t figure out why you’re doing it.
Illegal aliens have a right to be armed…maybe in some other country. But they are illegally present here. Arrest them, deport them. If they come back, send them to prison for illegal entry and not getting the message the first time.
Well, I wonder if illegals are allowed to own American slaves?
I was wondering if it is ok for illegals to OWN American slaves? The government is trying to give away our country, so I guess We The People, black, white, red, yellow and brown will be on the auction block. I truly do not like people comining into MY country and not assimilating or making their own laws. They are like a house guest that wont leave and wants to take over your house and tell you what to do. It is about time we stood up and showed our UGLY faces, now that we have tried to “polite” them to death. That “an’t” working, now is it? Soooo, this government better know that this is OUR country and our LAWS based on Judeo Christian ethics, laws and statutes. We are about fed up with this bunch of South of the Border and Dunes fleas coming over here and people bowing and scraping until we lose what our Republic stands for. It is getting midnight out there and I am saying, enough is enough.
Illegals are not citizens and do not have the rights we do. Get it right or go back with them. Yes, we are all created by God, the Creator, but he separated the people for the same reasons that are going on here today. We just do not get along. He gave them different languages to slow them down. Some of those like idols and he does not want idols in His land, around His people. You go into a church and put idols on an alter of some Protestant Church or some foreign idols on an alter of a Catholic Church and see what happens. God gave our forefathers this land and many of them fought and died so they could rest their weary bones somewhere. Later, hey faught Indians who wanted to keep it all and use an excuse to run tired people out, when it was enough land to settle for everyone and at the time wanted to stir up hostilities brom both sides drinking and boozing and acting crazy, so war and death followed. We settled, we formed a Republic and dared anyone to bother us, then you have your own citizens stirring up trouble who lay around in their parents’ basement and don’t work to look like they are doing something. They know nothing but how to take off others. They come on these blogs and fight for something just to look like someone who knows something, then take up for the enemy. Rebelling against God, their parents, their country, only to have their own throats cut by their new found friends. These are a sick ingrates who can’t get past the X-box and games stations and think they are being somebody while letting their parents and the American People foot the bill. I say go to the border with your illegals and to the dunes and be happy with your new found friends. Meanwhile there are soldiers dying, parents crying, and others who should say ‘GOOD RIDDENCE.’
Do not forget those who died who have tried to keep these troublemakers out.