Does the Second Amendment apply to non-citizens? McDonald Voting Paradox Revisited.

January 7th, 2011

This case from South Dakota presents a situation where a non-citizen was denied a conceal carry permit.

A man who emigrated to the United States from the United Kingdom more than 30 years ago filed a lawsuit Monday against the state of South Dakota after his application for a concealed weapon permit was denied.

Under South Dakota law, a person must be a U.S. citizen in order to qualify for a concealed weapon permit, but Wayne Smith contends that provision violates the U.S. Constitution.

Smith, represented by the American Civil Liberties Union of South Dakota, filed his lawsuit in federal district court.

Does the Second Amendment apply to non-citizens?

If the Second Amendment was incorporated under the Due Process (which applies to “all persons”),¬†the plaintiff could rely on the Second Amendment.¬†However, the privileges or immunities only applies to citizens of the United State. Plaintiff could not avail himself of Second Amendment rights through the Privileges or Immunities Clause.

But wait! How was the Second Amendment¬†incorporated? There were not 5 votes for Due Process, only 4. How was the Second Amendment incorporated? If it was incorproted through due process, it applies to non-citizens. If Justice Thomas’ concurring opinion controls, it will not apply to non-citizens.

The voting paradox in McDonald presents some interesting wrinkles here. For more thoughts on McDonald see my articles here and here. Perhaps plaintiff can challenge this law under the equal protection clause, but the validity of the Second Amendment argument is questionable.

H/T Instapundit.

Update: Patrick Charles provides a reply to this post here.