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State restrictions on concealed carry by noncitizens are unconstitutional

[UPDATE: For more on noncitizens and constitutional rights, see the end of the post.]

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.

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. (The New Mexico case was brought by the Second Amendment Foundation, which deserves to be acknowledged, but that’s not as surprising a fact. The North Carolina case was won by Camden Webb at Williams Mullen.)

Finally, note that there is a hot debate among lower courts about whether bans on all carrying of guns outside the home, whether concealed carrying or open carrying, are constitutional. But this case doesn’t discuss that debate, because it focuses on the discrimination against citizens.

UPDATE: Several commenters suggested that noncitizens don’t have constitutional rights. That is a defensible position, but it needs some defending, so if you want to make this assertion, please supply some argument to support it. In particular, please keep in mind the following:

1. The notion that the Constitution protects noncitizens has some pretty illustrious defenders, including James Madison, who criticized the Alien Act of 1798 in part on these grounds:

Again, it is said, that aliens not being parties to the Constitution, the rights and privileges which it secures cannot be at all claimed by them….
But … it does not follow, because aliens are not parties to the Constitution, as citizens are parties to it, that whilst they actually conform to it, they have no right to its protection. Aliens are not more parties to the laws, than they are parties to the Constitution; yet, it will not be disputed, that as they owe, on one hand, a temporary obedience, they are entitled in return to their protection and advantage.
If aliens had no rights under the Constitution, they might not only be banished, but even capitally punished, without a jury or the other incidents to a fair trial. But so far has a contrary principle been carried, in every part of the United States, that except on charges of treason, an alien has, besides all the common privileges, the special one of being tried by a jury, of which one-half may be also aliens.

He may have been wrong, and others in the late 1700s apparently disagreed with him; but I don’t think his position can lightly be dismissed as obviously mistaken.

2. The relevant constitutional provisions aren’t textually limited to citizens. Even if you focus on the term “the people” in the Second Amendment (a term that could also refer to, well, people, whether citizens or not), the court’s decision in this case didn’t rest on any Second Amendment right to carry concealed weapons. It instead rested on the Fourteenth Amendment Equal Protection Clause caselaw, and that Clause provides that no state shall “deny to any person within its jurisdiction the equal protection of the laws” (emphasis added).

3. Just to repeat what the post stated, this case doesn’t involve illegal aliens. (“Note that none of this affects bans on gun possession by illegal aliens; such bans have been uniformly upheld.”) Rather, it involves the treatment of permanent residents, who are basically lawful green card holders.