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Citizen, not subject

A suit:

A man who emigrated to the United States from the United Kingdom more than 30 years ago filed a lawsuit Monday against the state of South Dakota after his application for a concealed weapon permit was denied.

Under South Dakota law, a person must be a U.S. citizen in order to qualify for a concealed weapon permit, but Wayne Smith contends that provision violates the U.S. Constitution.

Smith, represented by the American Civil Liberties Union of South Dakota, filed his lawsuit in federal district court.

A lot of things I like about this suit: Seeing someone from Where Great Britain Used To Be wanting a carry permit; seeing the citizen requirement challenged; and that the ACLU is representing the guy.

26 Responses to “Citizen, not subject”

  1. Carl Gierke Says:

    I don’t see how a non-citizen can expect constitutional rights. That’s what being an American citizen means.

  2. Flighterdoc Says:

    Carl, the Constitution says stuff about “The People”, not the citizen. In fact, a strict Constitutionalist would say that any limitation on non-citizens is unconstitutional, based on the wording

    Montana has the same sort of law, which keeps my Canadian and damned proud of it father in law (who lives with us, after retiring from the RCMP) from getting one. So he carries openly.

    Something that neither subjects or visitors in Canada are allowed to do.

  3. nk Says:

    Interesting question. What is the arm-bearing class? I tend to go with any sound-minded citizen, myself. But this is a nation of immigrants and a lot of people who fought and died to build this country were not yet citizens.

  4. SayUncle Says:

    I donít see how a non-citizen can expect constitutional rights. Thatís what being an American citizen means.

    The constitution limits the .gov. It doesn’t grant things to citizens.

  5. wizardpc Says:

    I’d like to know why he’s been here 30 years and isnt a citizen yet.

    He probably has a good reason. One of my best friends is a 32-year old British Subject and has been here since he was five years old. His reasons for not becoming a citizen include 1)not wanting to be responsible for the state of our govt 2)not wanting to be associated with the genocide of native Americans and 3)not wanting to upset his parents, who also live here as permanent residents.

    BTW I’m pretty sure the Constitution applies to everyone who’s here.

  6. ViolentIndifference Says:

    Not arguing, just asking:

    If the constitution applies to everyone ‘here’, then why is there any legal consideration about ‘citizenship’?

  7. matt d Says:

    In the legal realm, if carry outside the home is protected, then it’s protected via Heller through McDonald.

    The McDonald plurality incorporated the 2A through the due process clause of the 14th amendment, which applies to all people, not just citizens.

    An interesting question that I don’t think has gotten enough attention is about Thomas’s concurrence. His fifth vote for incorporation was mainly based on Privileges/Immunities clause of the 14th Amendment, which only applies to citizens.

    Generally, with separate concurrences, you only get the weakest conclusion as a result of the case (if that makes sense). So if four members say A & B are protected, and one member says B & C are protected, you only get B as a result.

    So the question is whether Thomas’s concurrence can be read as agreeing to Due Process incorporation as well as preferring P or I incorporation, which would cover non-citizens. Reading it, I could go either way.

  8. Jim S. Says:

    Kind of funny considering how easy it is to get one in South Dakota. Their permits don’t even look legit! It is just a piece of laminated paper!

  9. ExUrbanKevin Says:

    He’s right, that’s unconstitutional. I’m still a Canadian citizen, but I have my Arizona CCW. The right to keep and bear arms isn’t limited to citizens, as it is with voting or the natural born like it is for the Presidency.

  10. ExUrbanKevin Says:

    Oh and in case you’re wondering, I’m not a citizen after 25+ years of living here because all it would allow me to do that I can’t do already is vote and serve on jury duty. And getting it would cost me $800+.

  11. mikee Says:

    Interesting that a 30+ year British resident in South Dakota brought this case, and not Julio, the non-English speaking (likely illegal, but I DADT) immigrant I hired yesterday at the Home Depot to clean my gutters for $50 cash, here in Texas.

    How many folks are there like the plaintiff, versus those like Julio, in this country? Would Julio and all his countrymen be covered by this case’s outcome, or just those in the same appeals court circuit as South Dakota?

  12. aeronathan Says:


    Trying to think of a way to explain this clearly.

    The natural/inalienable rights are those that apply to everyone. IE those you have simply by existing such as speech, press, bear arms. Whether a gov’t exists or not you still have these rights.

    There is no inalienable right to vote, hold office, etc. Those are rights conferred as part of citizenship and thus participation in gov’t. Without a gov’t, those rights don’t mean a whole lot.

    And quite frankly, a gov’t that lets non-citizens do those things, isn’t likely to be around very long, so its with good reason those rights don’t apply to non-citizens.

  13. Matt Groom Says:

    My best friend is a British Expatriate. He was born in England, and when he was, like, 18 months old, his Mom, Dad, and half dozen bothers and sisters under 18 all moved to the US. His dad, Andy, is a gun nut, like all lovers of Liberty, and he actually taught ME to shoot. As far as I know, nigh on 30 years later, he’s still not a citizen. Resident Aliens are allowed to own guns in the US.

    My Friend, his son, Stuart, and myself, both joined the USMC. We had different MOS’s, and were in separate units, etc. I went to Iraq, he went to Afghanistan AND Iraq. He became a US Citizen in Iraq, after 25 years as a resident alien. I served with a unit based out of California, and we had perhaps as many as 35% non-citizens in my unit at one point (mostly Mexicans and some other South Americans). If they’re allowed to join the military, and allowed to fight in a war, and allowed to own a gun, I can think of no reason why they shouldn’t be allowed to CARRY a gun when they’re not in uniform, even if they never become citizens.

  14. Shawn Says:

    I don’t get it. It’s been 30 years. He had to be a naturalized citizen at this point. A legal immigrant. That makes him a citizen with full citizenship. He can buy guns legally and he can vote. So the sheriff in question is just being an idiot.

  15. Sigivald Says:

    Shawn: Why does he “have to be” a naturalized citizen?

    A legal permanent resident alien is not the same as a citizen, and there’s no requirement to either become one or return home in general, assuming there’s some reason INS will accept for him remaining in the country indefinitely.

  16. JFT Says:

    Permits aren’t that easy to get. I had to drive all the way over to the Sheriff’s office, spend endless seconds filling out the form, wait a week or so AND pay 10 freaking dollars!!!11!! All kidding aside, this issue arose from the legislature amending the statute to “citizen of the United States” instead of “legal resident.”:

    Apparently this happened in 2002, I was out of state in grad school at the time. If his permit was current, then the previous Sheriff apparently wasn’t aware of the rule change as permits are good for 4 years. A permit used to be required for no waiting period, but they got rid of that requirement this year. Here’s a link to an Argus Mis-Leader article about the issue:

  17. Earl Harding Says:

    OT for the original topic but germaine I believe.

    I think there should be a time limit on green cards, like 15 years.

    If you don’t want to be a citizen with all the associated rights and responsibilities (like voting and jury duty) then go home.

    Folks here for 30 years without becoming a citizen want all the financial benefits of a dynamic free market economy and the liberties we have, but who don’t want to swear allegiance to the USA are being disingenuous at best. These folks have clearly made this country their home, but wonít swear to defend it? This is not right.

    Once you actually have a green card then citizenship follows fairly simply, if slowly due to grinding gov’t bureaucracy. The green card was always supposed to be a waypoint to citizenship, not a destination in it’s own right.

    I should know. I’m an immigrant, and becoming a citizen was the second best event in my life, after getting married.


  18. JFT Says:

    Oops, just realized I linked the linked article in the post. That’ll learn me to follow links. No wonder I never comment.

  19. Jonathan Says:

    According to, South Dakota honors almost all other states’ permits. Whether he should get the permit there or not, wouldn’t it be easier in the mean time to apply to another state? Florida and Utah both come to mind.
    According to the posted article, it appears the state of SD only requires citizenship to get their permit, not neccesarily saying that he can’t carry with a permit from another state.

  20. Ash Says:

    SAF filed a similar case in WA in 2008 for British resident, with the result being injunctive relied. The legislature fixed the law six months later to carve legal residents out of their alien firearm license scheme.

    @aeronathan – are you arguing that permanent resident non-citizens should be happy with ‘taxation without representation’?

    I know one very good reason to delay citizenship for the first decade at least – the US expatriation tax..

  21. Ash Says:

    Typing comments on iPhones suck. That was ‘injunctive relief’!

  22. Gene Hoffman Says:

    “If you donít want to be a citizen with all the associated rights and responsibilities (like voting and jury duty) then go home.”

    How amusingly short sighted. I have a very good friend who is married to a citizen but has not had the time or the patience to put up with and therefor complete the insane bureaucracy necessary to become a citizen.

    I can tell you that she’s paid income taxes over the last 5 years in amounts that would double the entire combined income tax payments of every commenter in this thread. Legal immigrants have plenty of the responsibilities…

    I mean, if legal immigrants don’t deserve protection of the 8th amendment why don’t we just send the cops out to massacre them for not being citizens (hyperbole intended.)


  23. Earl Harding Says:


    Personal experience – it isn’t that hard. It is slow, but simple. It took only a few hours of my time to fill in the form and 2 short visits to the INS office. About 16 hours of personal time and months of waiting. This is in complete contrast to getting my green card which was a nightmare.

    If 16 hours of actual effort and a year of waiting isn’t worth it to them to actually participate in civics in this country then that says alot.

  24. ExurbanKevin Says:

    Keep in mind one thing: The man in this case, much like myself, is here not because our mothers lived in a certain geographical location when we were born, but because out of all the countries in the world, we CHOSE to live in America. We’re here not because we were born here but because the U.S. is (almost) everything we hope for and dream of in a country.

    I will let the patriotism/lack of patriotism discussion continue.

  25. ViolentIndifference Says:

    ExurbanKevin: So you are enjoying the party, but didn’t bring any beer.

  26. LoboSolo Says:

    I think we should issue carry permits to foreigners as long as their governments issues permits to our citizens living there Ö oops Ö that would leave this fellow out.

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