U.S. expats come up short on many of the U.S. Bill of Rights. But their is some progress on of them, albeit one which much of the expat community doesn’t aggressively pursue–the 2nd amendment right “A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed.”
At issue, is whether a U.S. citizen has an equal and non-limited right to be armed while that U.S. citizen is in the U.S. The first discussion is that of an expat who holds a valid 2nd address in the U.S. The second discussion and case is related to an expat who has only a legal residence outside of U.S. The second case digs past a right which could be artificially be limited by the citizen’s uses, be it for sport or for self defense.
It’s not necessary for expats to enter into arguments as to whether this right is right or wrong, especially as this right is not shared in most of the countries where expats reside. In an effort to stay out of arguments as to whether this right is good or bad, just think of it as any one of any rights which might be granted by a constitution, which however is not afforded to non-resident citizens. Perhaps one could have a constitutional right to SuperSize Big Gulps, which may not be all that good for you or your family, but indeed it is a right which you might have to indulge in a product available to other resident U.S. citizens. The post is simply to point out only one effort to gain equal treatment for expats under the existing Constitution and its amendments.
THE PROBLEM STATEMENT
Federal laws prohibit non-residents of any/all states from purchasing arms throughout the country. An expat is a citizen with rights and those rights are not supposed to be infringed within the U.S. A U.S. citizen expat who can’t import a weapon and can’t purchase a weapon is then theoretically barred from exercising the right to bear arms as listed in the 2nd amendment (that is, if he isn’t required to borrow one from somebody (which is also probably currently illegal) or to have already “possessed” one prior to becoming an expat.
What is less relevant to most of the longterm “expat” or non-Homelander readers: The ATF issued an opinion in 2010 that essentially states a person can have two residences, one abroad and one in the U.S., and still be eligible to purchase a firearm in the U.S. during such times as the person occupies the U.S. residence. That opinion is at this link: https://www.atf.gov/file/55496/download.
“The Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) has received inquiries seeking clarification as to whether, under Federal law, United States citizens who maintain residences in both a foreign country and a particular State may purchase firearms while in the State.
ATF has previously addressed the eligibility of individuals to acquire firearms who maintain residences in more than one State. Federal regulations at 27 CFR 478.11 (definition of State of Residence), Example 2, clarify that a U.S. citizen with homes in twoStates may, during the period of time the person actually resides in a particular State, purchase a firearm in that State. See also where ATF held that, during the time college students actually reside in a college dormitory or at an off campus location, they are considered residents of the State where the on campus or off campus housing is located.
The same reasoning applies to citizens of the United States who reside temporarily outside of the country for extended periods of time, but who also maintain residency in a particular State. Where a citizen temporarily resides outside of the country, but also has the intention of making a home in a particular State, the citizen is a resident of the State during the time he or she actually resides in that State. In acquiring a firearm, the individual must demonstrate to the transferorlicensee that he or she is a resident of the State by presenting valid identification documents.
Held, for the purpose of acquiring firearms under the Gun Control Act of 1968, a United States citizen who temporarily resides in a foreign country, but who also demonstrates the intention of making a home in a particular State, is a resident of the State during the time period he or she actually resides in that State.
Held further, the intention of making a home in a State must be demonstrated to a Federal firearms licensee by presenting valid identiication documents. Such documents include, but are not limited to, driver’s licenses, voter registration, tax records, or vehicle registration.
RIGHTS FOR NON RESIDENTS
More relevant to most readers is that federal law effectively blocks the purchase of a firearm in the U.S. by a U.S. citizen living abroad with no residence in the U.S.
The federal ban is the subject of a long-running Second Amendment challenge, currently captioned Dearth v. Lynch. The most recent published opinion in that case, from June 2015, denied the government’s request for summary judgment and remanded the case for trial.
In the arguments (whose language and logic is partially understandable), it was established that the plaintiff indeed had no options available to him as a U.S. citizen to bear arms in the United States. The case looked at his potential ability to import a weapon, which he could not. It also looked at the various state/federal laws that may have allowed him to have firearms for sporting purposes, but the court found that there was no documented method of purchasing firearms for other legally valid purposes (self defense). It also appears to throw out any thoughts that it is states that should be the plaintiff, and it finds that there indeed states which do not prohibit non-resident purchasers, but it is indeed federal law that prevents the plaintif from purchasing the weapon for which his constitution states should not be limited,
The case illustrates that indeed, it has been fully possible for a combination of state and federal laws to prevent the exercise of non-resident citizens from exercising their Constitutional rights. Also, that the possibility of seeing the proper court does exist if one has access (including financial) to lawyers with sufficient expertise. It also points out the long road necessary to even reach a court which might make a decision.
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(Again, this author does not enter the argument as to whether the 2nd amendment is a good right or a bad right.)