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Gerard Magliocca identifies an odd twist: to offer non-citizens RKBA, you have to ignore the original meaning.

One theme that emerges from an examination of John Bingham’s understanding of the Fourteenth Amendment is that: (1) he wanted the Bill of Rights to apply to the States; and (2) he thought only citizens were entitled to the protections of everything in the first eight amendments. Non-citizens were entitled to due process and equal protection, but not to something like, say, the right to bear arms. The Supreme Court, though, has completely obliterated Section One’s distinction between citizens and persons by incorporating most of the Bill of Rights through the Due Process Clause which, of course, applies to all persons.

Nevertheless, there now appears to be a movement to resurrect Bingham’s distinction as between legal residents (citizens and aliens) and illegal residents. In other words, courts seems hesitant to say that illegal aliens have, for example, a right to bear arms or certain other protections in the Bill of Rights even though the right is recognized as fundamental under the Due Process Clause.

This is the implication Justice Thomas (and Gura, et al) failed to really confront in McDonald. If the right to keep and bear arms was extended to the state through the Privileges or Immunities Clause–which applies only to citizens, not persons–then the right would not protect non-citizens (such as illegal alens).

This Onion headline reminds me of a very witty line from an opinion out of the Western District of Pennsylvania last year.

To paraphrase the American Humane Association’s seal of approval, which is emblazoned during the end credits of all movies produced by the Screen Actors Guild, no patients were harmed during the attempted-opening of this methadone clinic. No injury, no benefit, no standing. The Plaintiff’s complaint recognizes this distinction. While praying for damages, the complaint sought “damages for the harm it experienced as a result of Defendant’s discriminatory practices,” (CompI. p 20.) (emphasis added). That is, the damages it experienced, and not any damages to patients.

My friend and former classmate Andrew Grossman was testifying before the House Subcommittee on Courts, Commercial, and Administrative Law. Representative Johnson attacked Andrew, alleging ties between GMU and the Koch Brothers.

Mr. JOHNSON. Mr. Grossman, you are a graduate of George Mason University, correct?

Mr. GROSSMAN. Yes.

Mr. JOHNSON. The law school. George Mason University Law School, a public university in Virginia that has received more than $30 million from the Koch brothers. And you are also familiar with the Mercatus Center, which is —

Mr. GROSSMAN. I believe it is Mercatus.

Mr. JOHNSON. Mercatus? Yes, you are familiar with it. And its goal is to deal with how institutions affect the freedom to prosper. That is

Mr. COBLE. Mr. Johnson, would you suspend just for a moment?

Mr. JOHNSON. I will, without waiving any time.

Mr. COBLE. Well, you seem to be going far afield here. If you could confine it to the issue at hand.

Mr. JOHNSON. Well, you know, it goes to the credibility of these three witnesses, all of whom have connections to the Koch brothers, and we have got — I mean, this is not the first hearing where this has happened, where we have had a full monty, lf you will, of Koch brothers-lntluenced lobbyists. And I think you are a lobbyist, too, aren’t you, Mr. Grossman?

Mr. GROSSMAN. No, I am not. And let me add —

Mr. JOHNSON. You are not a registered lobbyist?

Mr. GROSSMAN. No, I am not. I have not engaged in any lobbying activity ever, so far as I am aware.

Mr. JOHNSON. But the Mercatus Institute, you are a product of that?

Mr. GROSSMAN. I have never even set foot in the Mercatus Institute. You are alleging that my connection with the Koch brothers is that I attended a law school

Mr. JOHNSON. Don’t the Koch brothers donate money to George Mason University?

Mr. GROSSMAN. Pardon?

Mr. JOHNSON. Koch brothers donate money to George Mason University?

Mr. GROSSMAN. Who donated money to your university? Beats me.

Mr. JOHNSON. Do they maintain editorial control over what comes out of that university’s think tanks?

Mr. GROSSMAN. I don’t even know what that would mean ln a university setting, and I was a student at the university, rather than an employee or a lobbyist or of its think tanks.

Mr. JOHNSON. Well, you grew up in that environment, and you are a reflection of that environment in your professional role today. And that is the point that I want to make. Thank you. I will yield back.

…

Mr. GROSSMAN. I don’t feel the need to respond directly to baseless ad hominem attacks. I think my work speaks for itself, but thank you.

Andrew handles himself quite well. I suspect I will be subject to such attacks sooner or later.

Understatement of the day during oral argument in 11-45 Elgin v. Department of Treasury.

From the Texas lawyer:

“Vorr Dyer” – 46 (although many of you admit this is wrong and/or redneck)
“Vwuah Deer” – 43 (many of you are very proud of yourself and your intricate manipulation of French)
“Vwar Deer” – 9
“Vorr Deer” – 7
“Voy Dire” – 5
“Jury Selection” – 3
“Vwor Dire” – 1 (explained to me as “rhymes with tire”)
“Vwor Dar” – 0 (some of you are lying; I have heard you, and this is what you say)