South Dakota ACLU and GOA Concealed Carry Case Invites Questions about Immigrant Gun Rights

The ACLU stepped up to the plate for gun rights in South Dakota in a case that even now, weeks after it was settled, creates waves among gun owners.

In July 2010, Wayne Smith was denied his concealed weapons permit. The South Dakota chapter of the ACLU file a lawsuit in January 2011 on Smith’s behalf. On Feb. 11 a U.S District Judge ruled that the state of South Dakota could not deny Smith his concealed carry permit, which he’d received four times previously.


So far it seems like a slam-dunk, no-questions-asked win. But it’s a case that made for more than strange bedfellows and it’s likely to divide gun owners on two other hot-button issues – immigration and national security.

The twist in this tale is that Smith is a British citizen who has been a legal U.S. resident since 1979. His citizenship status is permanent U.S. resident – non-citizen. What caused the refusal of his permit application in 2010 was a 2002 amendment to the state’s concealed weapons law that the ACLU said is discriminatory.

“We went back and listened to the testimony from 2002 and it was in response to 9/11 as well as wanting to make sure that only U.S. citizens were receiving these permits,” South Dakota Secretary of State Jason Gant told FoxNews.com when the website broke the story.

The ACLU of South Dakota argued in its January 2011 brief that this restriction was a “blatant violation of the 14th Amendment.” Backers of the law say the restriction is designed to keep guns out of the hands of “illegal aliens.”

U.S. District Judge Karen Schreier sided with the ACLU, saying gun rights should not be restricted just to U.S. citizens.

This is not the first time the ACLU has acted to stop infringement on the gun rights of non-citizen U.S. residents. In 2008 a similar case in Kentucky saw the ACLU filed on behalf of another legal resident Brit who was denied a concealed permit despite the fact he had legally lived in the Bluegrass state for more than a decade.

When the South Dakota story broke, initially even the more hard-line gun rights group Gun Owners of America appeared to be on the side of restricting gun rights for non-citizens.

Larry Pratt, executive director for the Virginia-based “no compromise” gun lobby, initially told FoxNews.com, “If the guy wants to enjoy the full benefit of residing in the United States become a citizen. He’s been here for 30 years what’s he waiting for? They want to make it so illegal aliens have the same rights as everybody else…every little bit chipping away.”

When Guns.com talked to Pratt on Friday, he backed off what may have been an off-the-cuff reaction and he said he’d been misquoted, adding that he believes that, while gun rights are protected by the Second Amendment, they don’t come from the Second Amendment.

“I told Foxnews.com they got it wrong. (Smith) does have the right to keep and bear arms and that doesn’t come under the Constitution. He should have the right to keep and bear arms,” Pratt said.

The National Rifle Association, meanwhile issued a statement of unequivocal support for Smith, saying that as long as a U.S. resident is law-abiding and eligible to buy a gun they should be allowed a concealed carry permit under prevailing local laws.

Pratt, however, added that he still believes Smith should have avoided the problem by becoming a U.S. citizen.

“The easiest way out for the British national to not lose his permit was to become a citizen,” Pratt said.

This is where it gets trickier. In both the South Dakota and Kentucky cases, the aggrieved parties were both legal, long-term U.S. residents from the United Kingdom, where incidentally gun laws are decidedly more restrictive. .

Those who support this kind of restriction on non-citizens say they have in mind illegal immigrants from less allied nations. One wonders if Second Amendment stalwarts will remain so in cases where the parties that stand out from the crowd at a typical gun show, be it because of their native language or religious affiliation.

Conversely, even among immigration advocates there is pause taken, mostly in consideration of allowances that could some day allow  those who immigrate here in violation of the law to have the same rights and entitlements as legal immigrants.

Courts have long held that while all persons in the United States are guaranteed equal protection under the law, some rights are reserved for more protection than others. Only citizens have voting rights, for instance, while free speech and religious rights are taken for granted as extending to all standing on U.S. soil regardless of their status.

Meanwhile, federal courts have ruled for and against non-residents in cases involving the Fourth Amendment protection against illegal search and seizure, and in cases involving mere firearms possession.

Regardless of the legal complexities, the philosophical questions for gun owners comes down to these two: Are gun rights an extension of the natural right to self-defense and thus they apply to everyone? If not, is this a degree of compromise they are willing accept: acknowledging that they are favored by the government and have a greater claim to gun rights?

The ACLU is often criticized for the unpopular, principled stands it takes in cases where the facts are the least savory. Will gun owners do likewise, or will they accept a foothold for the gun control advocates?

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