Last week I blogged about the curious state of our constitutional law jurisprudence:
So let’s get this straight.
Non-citizens in the United States are among “the people” for purposes of the Fourth Amendment, and receive protections against unreasonable searches and seizures.
Non-citizens do not have the First Amendment right to contribute to independent expenditures and engage in political speech.
Non-citizens do not have the right to keep and bear arms.
Ian Millhiser at Think Progress, with whom I seldom agree–though funny story, we were in the same Kung Fu class in Arlington, and remain friends–agrees with me!
Several constitutional provisions refer to rights that belong to “the people.” The Second Amendment refers to “the right of the people to keep and bear Arms.” And the Fourth Amendment provides that “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.” According to the Fifth Circuit’s reasoning, which was embraced last week by the Eighth Circuit, undocumented immigrants enjoy neither right because they are not part of “the people”:
This reasoning isn’t just wrong, it is obviously wrong. Even if undocumented people don’t count as part of “the people,” the Supreme Court held in Mapp v. Ohio that the Constitution’s guarantee that no “person” may be denied liberty without due process of law includes the right to be free from illegal searches and seizures. More recently, in McDonald v. Chicago, the Supreme Court held that the same guarantee of due process to all “person[s]” also includes the right to bear arms. Last time we checked, undocumented immigrants are people.
It’s deeply disturbing that two federal appeals courts have now embraced this clearly erroneous legal argument. Under this interpretation of the law, it’s not clear that anything prevents police from breaking into an undocumented persons’ home at any time, or from simply arresting them despite no evidence that the person committed a crime.
It’s curious that groups like Think Progress haven’t supplied more amici support to my colleague’s case in Bluman. You’d think they’d be all about expanding rights to non-citizens (but that pesky Citizens United gets in the way!)