"City Council Should Not Deny Non-Citizens Rights"

Omaha World-Herald, Sept. 21, 2002

by Eugene Volokh



The Omaha City Council seems about to violate the Nebraska Constitution, and probably the U.S. Constitution; but no-one is saying much about it.


“All persons,” the Nebraska Constitution says, “have certain inherent and inalienable rights,” including “the right to keep and bear arms for security or defense of self, family, home, and others, and for lawful common defense, hunting, recreational use, and all other lawful purposes.”  Voters enacted this language in 1988, and made clear that this right “shall not be denied or infringed by the state or any subdivision thereof.”


And yet the City Council is now considering reenacting its law banning anyone who “[i]s not a citizen of the United States” from owning a handgun.  Perfectly law-abiding Omaha residents -- adults who haven’t shown any sign that they pose a danger to others -- would thus be denied their clearly established constitutional right.


What justification can there be for this?  After all, noncitizens are surely included in “all persons.”  Some state constitutions secure the right to bear arms only to citizens; there’s a good argument that the federal Second Amendment also applies just to citizens.  But Nebraska’s constitution is broader, covering “all persons.”


And surely law-abiding noncitizens need to defend themselves, their families, and their homes just as much as you and I do.  Denying noncitizens this right because a few noncitizens may abuse it is wrong -- just as wrong as denying citizens the right to bear arms because a few citizens abuse it.


Historically, rights to bear arms, despite their broad language, have not covered children and felons, because these groups are seen as lacking the ability or the willingness to act responsibly and lawfully.  That makes some sense:  If the law can lock you up for a crime, it can also impose other restraints on you even after you’re released.  This departure from the constitutional text may thus be justifiable by logic and by longstanding American tradition.  But law-abiding noncitizens have done nothing to deserve being stripped of their rights.


The Omaha City Council’s action might also violate the U.S. Constitution’s Equal Protection Clause:  The Supreme Court has held that state and local governments generally may not discriminate against noncitizens, though the federal government may.


There are a few exceptions, mostly involving political behavior (such as voting) or the use of scarce government resources (such as in-state tuition at university).  But in general, people who are lawful guests of our country are entitled to the same basic civil rights -- including the same basic rights to defend themselves against criminals -- that citizens have.


Since September 11, we’ve heard many complaints about supposed oppression of immigrants; and many of these have proven unfounded.  Of course the government may lock up noncitizens who have overstayed their visas -- that’s just enforcing the law.  Sure, the federal government may interview people because they are citizens of certain foreign countries.  The government has broad power to ask people questions, especially when the risk of terrorism is involved.


But this city ordinance really is oppression: the government is denying to law-abiding noncitizens an “inherent and inalienable right.”  This isn’t some right that courts or academics made up; it’s a right spelled out in black and white by Nebraska voters.


If people think that immigrants should lack the right to bear arms to defend themselves, they should modify the Nebraska Constitution, and seek federal authorization for the discrimination against noncitizens.  But until that happens, the City Council should follow the law.




Eugene Volokh is a professor at UCLA School of Law, specializing in constitutional law and in the law of firearms regulation.