It is worth underscoring the truth of this, because it is surprising how even educated people like **Grumman **fail to understand it.
Not every undocumented immigrant has committed a crime – indeed, probably a minority have. Overstaying your visa, for example, is not a crime. It’s the equivalent of not getting a permit for that deck you built. Re-entering without authorization after you have been deported is a crime, on the other hand.
Is sneaking over the border a crime?
It’s a misdemeanor. 8 U.S.C. 1325.
The irony in that post would be funny if it weren’t a commonly held belief around here.
Richard Parker: What’s the deal with intermediate scrutiny in the opinion, and how does that fit into the decision?
It is a misdemeanor, as per the Immigration and Naturalization Act to enter the US at other than an authorized crossing point.
He challenged the law both as a violation of the Equal Protection Clause and the Second Amendment.
On the EP challenge, the Court correctly observed that discrimination based on alienage need only meet rational basis review, the easiest test under the Equal Protection Clause, because alienage is not a protected class when a federal law is being challenged. (It is a protected class with respect to state laws.)
As to the Second Amendment, the Court held that it wasn’t clear whether non-citizens are entitled to gun rights, but if they are, restrictions on certain non-citizens are probably subject to intermediate scrutiny. No one really know what the test should be, but from Heller it seems like intermediate scrutiny is probably correct since it would be hard to justify the restrictions on felons, etc., under strict scrutiny, but fundamental rights generally get stronger protection than rational basis review.
From there the Court observed that “The bottom line is that crime control and public safety are indisputably ‘important’ interests,” and that “Congress may have concluded that illegal aliens, already in probable present violation of the law, simply do not receive the full panoply of constitutional rights enjoyed by law-abiding citizens. Or that such individuals, largely outside the formal system of registration, employment, and identification, are harder to trace and more likely to assume a false identity. Or Congress may have concluded that those who show a willingness to defy our law are candidates for further misfeasance or at least a group that ought not be armed when authorities seek them. It is surely a generalization to suggest, as courts do . . . that unlawfully present aliens, as a group, pose a greater threat to public safety—but general laws deal in generalities.”
Seems basically correct to me, if you accept (as the Court must), the premises set out by the Supreme Court. But it is worth noting that this Court, like most, treats Second Amendment rights as second-class rights, not deserving of the same status as the First Amendment, say, with respect to the level of scrutiny.
Just to expand on that last thought: the form of intermediate scrutiny being applied is pretty weak even for intermediate scrutiny. The ability to conceive of a few possible Congressional interests that may or may not apply to any particular individual in a given category is pretty loosey-goosey. Remember that, in theory, intermediate scrutiny is also applied to gender classifications. Can you imagine a Court saying that the decision that women cannot own guns without first passing a federal exam could rest on the fact that Congress might have determined that the average woman has less firearm experience than the average man? Probably not. Usually there’s a tighter nexus required between the interest in general safety and the particular restriction on the right.
So what you have here is a sort of weak-sauce intermediate scrutiny. Which is all well and good from a Conservative perspective when applied to undocumented immigrants. But we’ll see how they feel when it gets applied to people with speeding tickets, or anyone with a history of depression, etc.
You know how it is; reality has a liberal bias.
Richard Parker: Thanks for the thoughtful response. That sort of commentary helps a lot in trying to “fight ignorance” and get to the essence of these complicated legal arguments.
As opposed to this:
Albeit perhaps the only misdemeanor punishable by exile. 
I really don’t see what the problem is. One can believe that the default position is that people have the right to bear arms, but that that right can be taken away. Or are you equally confused by “the right” not advocating for people in prison to be able to “bear arms”, or felons?
If Conservatives aren’t bigots. Explain the gay marriage bans. If they’re so defective that they’re bigoted against gays, why wouldn’t they be bigoted against others they perceive to be different?
Clearly we have pattern of legally documented conservative bigotry. The Conservative movement is full of bigots. The only question is who they’re bigoted against, and how persuasive it is.
Reasonable enough.
I still wonder if the NRA is going to weigh in or wisely avoid taking an official position.
Again, I know many who believe (erroneously), and I personally used to believe (ignorantly) that the Second Amendment is supposed be a sort of “escape hatch” to allow uprisings like the Redemption. In quarters where threat of violent insurrection is seen as a fundamental right, this should give certain people pause. Because of course it’s perfectly normal to deny gun licenses to undocumented aliens, but it flies in the face of a lot of NRA rhetoric about how acts which on consideration would be much worse than not having papers are a fundamental right.
(Of course, most of the crowd who think they have a right to bear arms to take down the Evil Overlord New Dealer Jew Hippies would in reality balk at an actual attempt at reiterating the Redemption, and just aren’t thinking it through. But it was a bemusing aspect to me.)
It’s not like you presented any actual arguments for me to respond to. You just used the common right wing tactic of pretending that my “commonly held belief around here” was funny without bothering to come up with a reason why.
As The Tao’s Revenge points out, the conservative movement is full of bigots. We all know it; you know it. And you know that you can win an argument trying to claim otherwise. So rather than producing an actual refutation of what I said, you pretended that it was ridiculous in a hollow attempt to laugh it away.
Interestingly, the American system has never considered deportation to be criminal punishment. If it were, it would be subject to a host of other constitutional and statutory rules.
I do wonder how many people are prosecuted annually under 8 U.S.C. 1325. I’ll bet it’s like…ten people. It’s just not really worth the time and resources when you can just deport the person. But I don’t know for sure.
The statement was:
Is that what you are attempting to defend? It’s a complete hijack of this thread, and I don’t really want to pursue that thought in this thread, but if you really want to defend it, I’ll be happy to open a separate thread to allow you that opportunity.
No the statement, was:
Given the documented conservative pattern of bigotry against gays, which you have not disputed, I am merely pointing out bigotry institutionalized through the law is an established pattern among conservatives.
Now you feel Der Trihs is incorrect, and perhaps he is, but conservatives have an established pattern of bigotry in one area, and you can’t just hand wave it away.
Yeah, whatever. That’s still a hijack of this thread. Do you want to defend that quote? If so, I’ll open a separate thread for you to do so.
Moderating
Der Trihs and The Tao’s Revenge: take your off-topic threadshitting to its own thread.
Waving around claims of bigotry and prejudice against a large, if not clearly defined, group, as though only the targets of your disdain suffer from those characteristics and pretending that you have thus identified the motives for thoughts or ideas with which you disagree is not only lazy, it is disruptive to the thread.
Knock it off.
[ /Moderating ]