The debate about whether an illegal immigrant has rights under the Constitution has been going on for a bit now. Usually, the news is filled with the words “due process,” which is kind of funny from the same people who tend to want red flag laws, but that kind of inconsistency is hardly unusual.

However, there’s another case that involves constitutionally protected rights. It’s a Second Amendment case, which isn’t unusual in and of itself. There are probably a thousand of them somewhere in the judicial pipeline.

But this one deals with illegal immigrants. More specifically, do they have Second Amendment protections?

The First Circuit Court of Appeals was asked Thursday to consider whether and to what extent immigrants lacking permanent legal status are considered part of “the people” who are constitutionally protected under the Second Amendment’s “right of the people to keep and bear Arms.”

On appeal from the U.S. District Court for the District of Puerto Rico, Moreno Vizcaíno-Peguero, a Dominican migrant living in Puerto Rico, claims the statute of his conviction under the Gun Control Act prohibiting noncitizen immigrants from possessing guns is “a complete and absolute ban on firearm possession without a particularized or individualized determination of dangerousness or untrustworthiness.”

Vizcaíno-Peguero argues his 2023 judgment of conviction for being a noncitizen in possession of a firearm and ammunition under 18 U.S.C. § 922(g)(5) should be overturned because Second Amendment jurisprudence post-New York State Rifle & Pistol Association Inc. v. Bruen requires the government to affirmatively prove that the firearm regulation is consistent with the historical tradition of firearm regulation in the country.

…

“Membership within the group constitutionally denoted as ‘the people’ was primarily defined by physical presence within the jurisdiction at the time of the founding,” his lawyers wrote in an appellant brief. “Therefore, persons, or human beings, physically present in the United States were, and are, entitled to firearm possession.”

It’s an interesting take.

The truth is that the right to keep and bear arms is a natural right, one that exists without laws or government. As such, Vizcaíno-Peguero does inherently have the right to have firearms.

But does he have that right within the borders of a nation he entered illegally? Vizcaíno-Peguero argues that yes, he does, because there were no period laws against it.

I don’t think he’s going to find that to be the winner he thinks it is, though.

There are laws from the appropriate periods that disarmed large swaths of the population who were deemed as dangerous, including free blacks, Catholics, and Native Americans. There’s no way that people believed every single member of these groups was dangerous, but they argued that there were many who were, and that was enough.

Likewise, we’ve seen plenty of violent crimes committed by illegal immigrants.

And let’s be real here, there’s more reason to do this with illegal immigrants than any of those groups from days gone by. Those folks were typically here within all bounds of the law. Illegal immigrants, by definition, aren’t.

Still, this should be an interesting case to follow, even if just to see if I’m right or not.