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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“All animals are equal but some animals are more equal than others”. George Orwell
(Again, this author does not enter the argument as to whether the 2nd amendment is a good right or a bad right.)
They have no problem declaring expats as residents for tax purposes.
“All animals are equal but some animals are more equal than others”.
Historically the US Constitution was considered to constitute the United States, so the United States (government) only had rights which were assigned to it and did not have other rights. When the Bill of Rights was enacted, it enumerated some of the rights of the people and some of the rights of each person, but not all of them.
At some point things changed so that the US Constitution was considered to constitute some of the rights of the people and some of the rights of each person, though not all of them. The United States (government) could do whatever it wanted, limited only if the people or person had a right to prevent it.
Usually courts hold that the people are US citizens and persons present in the US, so the US (government) can’t enter their houses to search or seize without a warrant, but the US can enter houses of non-resident aliens in other countries to search or seize without a warrant, because the 4th amendment only protects the people.
Usually courts hold that persons are all persons, so the US (government) can’t deprive a person of life liberty or property without due process, even if the person is a non-resident alien in another country. Of course this is obsolete since the US can assassinate anyone abroad including US citizens, the 5th amendment is completely dead, but for a while the 5th was distinguished from the 4th because of the difference between the people and persons.
It seems to me the 2nd amendment falls into the same category as the 4th. If a non-resident alien is temporarily present in a state that might not make the person part of the people, so maybe the person can’t bear arms. But if a person is either a resident or a US citizen then the person is part of the people and the US (government) can’t prevent the person from bearing arms.
So in this way it seems that the plaintiff should win.
But the 2nd amendment emphasizes arms for military purposes. I don’t know where sporting purposes come from. I don’t know how someone gets the right to bear arms to shoot targets or ducks, but they sure get the right to bear arms to shoot enemies. US Supreme Court found someone guilty of illegally bearing a sawed off shotgun because the court pretended there was no evidence of military use, apparently closing their eyes when US Marines use sawed off shotguns. Military use is important in bearing arms.
And one more thing. The 2nd amendment emphasizes free states. There isn’t one. The 2nd amendment should be as dead as the rest of them.
Perhaps off topic, I would like to know why I cannot vote in a federal election unless I have a US state residence. Since we’re now hounded like fugitives from justice by our politicians shouldn’t we at least get to vote every four years in a vain attempt to defend ourselves?
You can vote in your last state of residence. If you are child of us citizen you can usually vote in parents last address state.
Re the CONVENTION ON CERTAIN QUESTIONS RELATING TO THE CONFLICT OF NATIONALITY LAWS THE HAGUE – 12 APRIL 1930,
Article 3. Subject to the provisions of the present Convention, a person having two or more nationalities may be regarded as its national by each of the States whose nationality he possesses.
Article 4. A State may not afford diplomatic protection to one of its nationals against a State whose nationality such person also possesses.
Does this not imply that since there is no diplomatic protection for dual nationals, that also US laws on CBT, FBAR and FATCA, cannot be applied to them while residents of their other home State?
@MarkTwain, only some states allow those who have never had US residency to register to vote from abroad. Significant numbers are still effectively disenfranchised. Apparently fictive ‘residency’ for being liable for taxes and penalties does not buy one access to the theoretically constitionally unencumbered right to vote – allowing states to effectively deny those deemed citizens one of the fundamentals of citizenship.
“What if I was born overseas and have never resided in the U.S.?
Voting rights vary by State for U.S. citizens born overseas who have never established residency in the
✓ Thirty-one States have passed legislation to allow these citizens to vote if their parents are
eligible to vote in that State. In these cases, your voting residence may be your parent’s
States allowing citizens born overseas who never resided in the U.S.
to claim a parent’s voting residence
✓ If neither of your parents is from one of these States, you may not currently have voting rights.
However, additional States are working on passing legislation to allow citizens born overseas who
have never established residency in the U.S. to vote in the State in which their parents are
eligible. Check the Voting Assistance Guide for the most current State information
If pushed the USG probably prefer to let you buy arms than give you relief from FATCA and CBT.
“Article 4. A State may not afford diplomatic protection to one of its nationals against a State whose nationality such person also possesses.
Does this not imply that since there is no diplomatic protection for dual nationals, that also US laws on CBT, FBAR and FATCA, cannot be applied to them while residents of their other home State?”
It does not. It means that if Canada prosecutes a dual for failing to pay dual tax or failing to file dual $0.00 forms the other country cannot interfere with Canada’s prosecution, and if the other country prosecutes a dual for failing to pay dual tax or failing to file dual $0.00 forms Canada cannot interfere with the other country’s prosecution. King Solomon can offer protection by suggesting that each country put half of the dual’s body in each country’s jail, except if Israeli citizenship is one of the dual’s citizenships.
“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.”
Is this so that you can wield it in the US or bring it home to the country of your residence. If it is the latter then you must be in compliance of all gun laws within your country of residence. If not, then it’s black & white: you cannot possess that firearm. Canada has strict gun laws limiting the numbers of rounds you can have in a mag. You cannot cite the US 2nd Amendment and wave your American citizenship and expect to be allowed to use American capacity mags in Canada.
Just as you should NOT be able to have a US STATUTE like FATCA cross the US/CANADA border.
@The Animal, “Just as you should NOT be able to have a US STATUTE like FATCA cross the US/CANADA border.”
Very powerful statement because it is EASY for anyone to understand.
I always go back to Ginny whom I believe to be an exceptional plaintiff, no disrespect to the other two.
IF Canada considers Ginny a US Person governed by US Law, then her US 2nd Amendment rights should follow her across the river.
“IF Canada considers Ginny a US Person governed by US Law, then her US 2nd Amendment rights should follow her across the river.”
Wow, that’s an even more powerful statement even easier to understand. Please someone suggest to Arvay to ask if the court supports that outcome.
The issue written in the article addresses only rights of U.S. citizens (some of which happen to be expats) during their presence in the U.S.
There is no discussion in the article regarding behaviors outside of U.S.
“IF Canada considers Ginny a US Person governed by US Law, then her US 2nd Amendment rights should follow her across the river.”
Unfortunately, George, this is ONE Canadian who will oppose that. We don’t need a bunch of gun-toting types in Canada. You either obey the gun laws here (which is mandated in Canada) or you “go back to where you came from”.
On the other hand, I will also oppose and outright defy ANY law allowing US statute to be enforced in Canada – which is why I refuse to comply with FATCA. Period.
“The issue written in the article addresses only rights of U.S. citizens (some of which happen to be expats) during their presence in the U.S.
There is no discussion in the article regarding behaviors outside of U.S.”
I don’t care what the Unwashed States of Amnesia do within their own borders. My back goes up when they try to dictate how others behave outside of their borders.
The article states: “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.” To me that sounds perfectly legal because unless you have an address of the person that wields said firearm, it is essentially an invisible firearm. You have no way of tracking the weapon should a crime be committed with it.
If you should choose to exercise your Constitutional rights, then provide a fixed US address. Let me draw your attention to the following: “The right of the people to keep and bear arms shall not be infringed; a well armed and well regulated militia being the best security of a free country but no person religiously scrupulous of bearing arms shall be compelled to render military service in person.”
Now keep in mind a rag-tag group of anarchist hoodlums with no order or military training is not considered a “militia”.
“[E]ach and every free able-bodied white male citizen of the respective States, resident therein, who is or shall be of age of eighteen years, and under the age of forty-five years (except as is herein after excepted) shall severally and respectively be enrolled in the militia…[and] every citizen so enrolled and notified, shall, within six months thereafter, provide himself with a good musket or firelock, a sufficient bayonet and belt, two spare flints, and a knapsack, a pouch with a box therein to contain not less than twenty-four cartridges, suited to the bore of his musket or firelock, each cartridge to contain a proper quantity of powder and ball: or with a good rifle, knapsack, shot-pouch and powder-horn, twenty balls suited to the bore of his rifle, and a quarter of a pound of powder; and shall appear, so armed, accoutred and provided, when called out to exercise, or into service, except, that when called out on company days to exercise only, he may appear without a knapsack” Note that in 1792, Congress defined what constituted a “militia” and none of those self-styled militias that I see meet the requirements of being regulated to be “so armed, accoutred and provided, when called out to exercise, or into service,” All I see is a bunch of rag-tag hoodlums who call themselves militias and act as though they were anarchy-bent.
You do not have the right to “bear arms” under the Second Amendment without being a part of a militia (meaning the US Armed Reserves) if you want to literally take the 2nd Amendment word by word.
@ George. I have come out of my self-imposed lurkdom ( because I have been Grumpy Cat with respect to a lot of the articles posted lately here) to tell you how delighted I am that you are here with us again. I have missed you a lot.
I could write a dissertation about my 2nd amendment rights. If I am to be labelled by the USG as their ( tax or otherwise) citizen, then I have those rights too. To that extent, I understand what you are saying. WHERE”S MY DAMN RIGHTS? So I understand your point.
But as another of my friends, The_Animal said, I will always respect the laws of my actual citizenship, being Canadian and be thankful for our gun laws.
And 2nd amendment rights bear ( excuse the pun) no resemblance any longer to a well armed and well regulated militia. That’s a discussion for an other day and one I am not interested in.
I probably should keep in the back ground again because, while this is an open forum and people like to discuss a lot of ideas, which is the great nature of Brock, I am less comfortable here than I used to be.
I have one focus only: my role as a plaintiff in our Canadian law suit. Some days I confess I wish I could stop thinking about it and living it, but that’s just not my nature. I signed up for it with eyes wide open. I could write a book now. Instead, I have kept a journal. I can’t speak for my two co-plaintiffs, but this experience is almost indescribable at times. I’ll leave it at that for now.
George, the fact that you are back, the fact that so many people here really understand what the committee and the plaintiffs and our lawyers are striving to accomplish in Canada keeps me going.
While I haven’t been posting much lately, I do read here and the many and recent stories people have shared about their experiences ( hello Switzerland?) trying to live their lives under this new oppressive USG regime, keeps me going.
Some people trust in their governments, some in their laws of their land.
I trust in the rule of law and justice which in my view are quite different things yet universal concepts.
Like I said, whether it is a good right or a bad right is not the issue. It could also be debated whether it is valid right, based upon some of the arguments mentioned. But, as it is, it is considered as a right.
A fixed address is a limiter. Some people agree that even themselves should be limited. And expats are limited.
It’s an academic article from myself, as it has no application to my personal situation or the way that I conduct my life in or out of the U.S. or which issue relates to voting. I was quite sure that lots of people would get up in arms about the goodness or badness of the right itself, I am actually surprised fewer did.