Government & Politics

Pleading the Fifth on the Second Amendment

Oliver Wendell Holmes once remarked, "Hard cases make bad law."

John J. Bastiat · Aug. 31, 2015

The late Supreme Justice Oliver Wendell Holmes once remarked, “Hard cases make bad law.” His point was that emotionally charged cases tend to incite activist judges to bend, break or rewrite laws to make the case go “the right way” because they “feel” the plaintiff or defendant “should” win. True justice — that is, Rule of Law — be damned. Unfortunately, a recent federal court decision just provided a textbook example of how the Law of Unintended Consequences plays out when judges follow this flawed ideology.

In U.S. v. Meza-Rodriguez, a split panel of three judges from the Seventh Circuit Court of Appeals has decided illegal aliens — “unauthorized non-U.S. citizens,” using the Seventh’s P.C.-speak — have a Second Amendment right to keep and bear arms. Wait, it gets better: That right extends to every illegal alien, no matter — as with the defendant, here — whether he has “multiple brushes with the law, [fails] to file tax returns, and [lacks] a steady job,” all of which — even according to the Seventh Circuit — “demonstrate that he has not sufficiently accepted the obligations of living in American society.”

The instant case concerns Mariano Meza-Rodriguez, a citizen of Mexico brought into the U.S. by his family when he was four or five years old, who never regularized his status. Milwaukee police arrested Meza-Rodriguez after responding to a report of an armed man at a local bar. After reviewing the bar’s surveillance video, which showed a man pointing an object resembling a firearm, just a few hours later the same officers responded to another report of a fight at a neighboring bar. The officers broke up the fight, immediately recognized Meza-Rodriguez from the surveillance video, and chased him after he fled. An ensuing foot chase ended with a pat-down search that turned up a .22-caliber cartridge in Meza-Rodriguez’ pocket, and he was arrested and charged with violating a federal statute that makes possession of a firearm by an illegal alien an aggravated felony.

Relying on the Supreme Court’s holding in cases stemming from Plyler v. Doe, the Seventh Circuit quoted the holding’s summary from a related case: “[A]liens receive constitutional protections when they have come within the territory of the United States and developed substantial connections with this country.” Huh? Beyond tossing a coin to determine the issue, how does one objectively measure whether a person has a “substantial connection in this country”? Better, why is a “substantial connection” — over, say, citizen or naturalized alien status — the litmus test for enjoying rights under the U.S. Constitution? Arguably, terrorists bent on destroying the U.S. have “substantial connections,” too, don’t they? Do they have Second Amendment rights, too?

The ruling in Plyler came about as a result of a heart-string-pulling case in which a bleeding-heart 5-4 majority decided Texas — as a constitutional matter — could not pass any law denying free public education to school-age, undocumented alien children. The “substantial connection” test was of course paraded out by the majority to reach the “correct” result, independent of the fact doing so also required them to tortuously twist existing law to reach it. Thus, like so many heartstring cases, a “happy ending” was achieved at the expense of solid jurisprudence, resulting in later misuse of the precedent-setting “law” used to craft a happy ending. Such is the case with the for-no-apparent-reason “substantial connections” test used in Plyler — and Meza-Rodriguez, unfortunately — to determine whether someone who is unlawfully in the U.S. should have the same constitutional rights as U.S. citizens.

For our part, we think constitutional rights should be reserved to those who are part of the legal political system under which the Constitution was established and operates. This class would of course include citizens, but would also include permanent resident aliens as well as nonresident aliens whose visas have not expired — in other words, it would apply only to those legally living in the U.S. In contrast, those who voluntarily exclude themselves from the U.S. political and governmental system by remaining in the U.S. as unlawful aliens should expect no such rights. These include those who exist in subcultures apart from the law and operate “under the radar” as would-be fugitives from U.S. rule: At best, they should expect to receive a deportation hearing, and that’s about it.

As to this Seventh Circuit opinion, our best advice for the two justices in the majority is to plead the Fifth Amendment, on the grounds that this decision — opposed by four other circuit courts, no less — will undoubtedly incriminate them both.

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