Alien Weaponry

Genius law professor Eugene Volokh sez that a law being considered by Omaha’s city council banning anyone who is “not a citizen of the United States” from owning a handgun violates Nebraska’s constitution. He even wrote an op-ed for the Omaha World-Herald opposing the law.

Naturally, Volokh gets the legal question right. The Nebraska state constitution was amended in 1988 to include the inalienable right of “all persons” 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.” Since non-citizens are people too, the ordinance would violate the constitution.

That settles the legal question but hardly the more basic question about the rights of foreigners in the United States. It isn’t hard to imagine why the people of Omaha might be wary of well-armed foreigners. And asking foreigners coming to work in your city to forebear weapons is hardly an innovation. One of my favorite scenes from J.R.R. Tolkien’s The Two Towers involves the negotiation at the gates of Edoras, where the fellowship’s members are made to lay down their weapons before they are granted entrance into the hall of Theoden.

Volokh argues that the law is unjust because “noncitizens are just as much in need of the ability to defend themselves, their families, their homes, and others, and just as entitled to engage in recreational use of guns (even if they may possibly be excluded from lawful common defense or even hunting because of their noncitizen status).” No one, however, would deny that rules against foreigners arming themselves impose costs on the foreigners in terms of security and recreation. But such costs have traditionally been seen as justified in light of the security interests of citizens.

But Volokh’s argument can be taken a step further, I think. We need to be suspicious of every attempt by our governments to distinguish between those deserving and those undeserving of basic liberties. The empirical evidence is that governments are not very good at getting such distinctions right. A glance at the proposed Omaha law reveals that that it isn’t just aliens who are denied the right to carry handguns. The ban extends to a host of official, American-born bogeymen. For exampe, anyone convicted of domestic harassment would be denied the right to own a handgun.

I think it is obvious that we would be better off dealing with foreigners at the borders rather than erecting new internal regulatory artifices. Wouldn’t the problem of armed foreigners would seem much less pressing if we admitted fewer foreigners in the first place? This is the same old dialect of mass immigration we’ve seen so often in the past: an immigration-driven crisis is followed by a proposal for increased managerial controls over our patterns of life and restrictions on our traditional liberties.
Posted by at September 24, 2002 04:08 PM | Send