April 27, 2015

CIVIL RIGHTS UPDATE: State restrictions on concealed carry by noncitizens are unconstitutional.

A federal district court in North Carolina held Friday that North Carolina may not discriminate against permanent resident noncitizens in issuing licenses to carry concealed guns. (Messmer v. Harrison.) The U.S. Supreme Court’s D.C. v. Heller decision said that general bans on concealed carry of guns are constitutional, because the have been around in many states starting with the early 1800s. But the Supreme Court held that state laws discriminating against noncitizens — even as to activities that aren’t themselves constitutional rights — usually violate the Equal Protection Clause. That seems to be the court’s rationale in this case.

I think the court’s result is quite right, and other courts have recently held the same, see Smith v. South Dakota (D.S.D. 2011); Say v. Adams (W.D. Ky. 2008); Jackson v. Eden (D.N.M. 2014). And there are older precedents supporting that, too: People v. Rappard (Cal. Ct. App. 1972) and State v. Chumphol (Nev. 1981). State v. Vlacil (Utah 1982), did uphold a ban on noncitizens’ possessing guns (not just carrying them concealed), but I think that was a mistake.

Note that none of this affects bans on gun possession by illegal aliens; such bans have been uniformly upheld. It also doesn’t affect bans on gun carrying or gun possession by noncitizens who are legally here but aren’t permanent residents — a category that includes not just tourists but also people who have lived here for many years, for instance on work visas that let them work in a particular job. Federal law generally bans gun possession by such non-permanent-residents; it doesn’t violate the Equal Protection Clause, because courts have said that the federal government may generally discriminate against noncitizens, but it might violate the Second Amendment, at least as applied to gun possession and not concealed carrying. I know of no cases that have dealt with the federal non-permanent-resident possession ban.

Plus: “A possibly surprising fact: The South Dakota and Kentucky cases were brought by the local ACLU chapters; though the ACLU generally views the Second Amendment as not securing an individual right to own guns (and thus disagrees with the Supreme Court), local chapters are apparently willing to challenge some discriminatory gun laws.”

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