Michele L. Lombardo, Annigje J. Buwalda, and Patricia Bast Lyman
Attorneys With the Law Firm
Just Law International, P.C.
Volunteer Staff of the non-profit
Jubilee Campaign USA
9689-C Main Street
Fairfax, VA 22031
Tel: 703) 503-0791
Fax: 703) 503-0792
In the aftermath of September 11, 2001, the United States acted
swiftly to enforce existing laws and enact new ones designed to
protect our country and our citizenry from further horrific
atrocities at the hands of dangerous terrorists. Chief among these
was the USA PATRIOT Act ("the Patriot Act") which was signed into
law on October 26, 2001. The Act's title is an acronym for its
stated goal: "Uniting and Strengthening America by Providing
Appropriate Tools Required to Intercept and Obstruct Terrorism."
Unfortunately some of these "tools" have been applied not
against perpetrators of terror -- but against innocent victims thereof.
Although much has been written about "privacy" concerns raised by the
Patriot Act, this article will focus elsewhere. In it we explore
"material support," and how this issue affects countless legitimate
refugees who have fled persecution in their homelands, only to be barred
from seeking protection in the United States. This unconscionable bar
arose from changes to the Immigration and Nationality Act ("INA") as a
result of provisions contained in the Patriot Act, and more recently in
the REAL ID Act of 2005 ("REAL ID Act").
INA § 212(a)(3)(B) bars from asylum anyone who has "engaged in terrorist
activity," as well as anyone who "affords material support" to one who
"has committed or plans to commit a terrorist activity." On the surface,
most would agree that individuals truly engaged in terrorist activity
and those materially supporting terrorists should not be granted asylum
in the United States. But just beneath the surface, one finds that both
"terrorist activity" and "material support" are defined so broadly that
innocent victims of torture, rape, and other atrocities committed
against them by brutal totalitarian regimes bent on their very
annihilation, could themselves be labeled "terrorists" or "material
supporters" thereof, and thus barred from the protection of asylum in
the United States -- and have been by immigration courts. This is
particularly true of those who have taken up arms in resistance in
self-defense against such violent forces, as well as for those who have
provided financial support or even food or clothing to others engaged in
resistance and protection on their behalves.
The barring of vulnerable refugees under INA § 212(a)(3)(B) has
devastating implications for the most brutally oppressed and intensely
vulnerable ethnic and religious minorities in the world. In conjunction
with Section 805 of the Patriot Act and Section 103 of the REAL ID Act,
the proliferation of this bar by the Department of Homeland Security
("DHS") and other government agencies against legitimate refugees is
both abhorrent and anathema to the very foundations upon which the
United States stands.
Even before September 11, 2001, U.S. law categorically barred from
asylum terrorists and those engaged in providing material support to
terrorist organizations. 18 U.S.C. § 2339(B) prohibits "providing
material support or resources" to organizations designated by the
Secretary of State as "foreign terrorist organizations." The material
support bar was first passed as part of the Antiterrorism and Effective
Death Penalty Act of 1996 ("AEDPA").
Congress was concerned that terrorist organizations with charitable and
humanitarian arms were raising funds in the United States that would be
filtered into terrorist activities. The AEDPA provision made unlawful
any support to these groups, even where the support was intended for
charitable or humanitarian purposes. AEDPA's definition of "material
support or resources" included providing tangible support such as money,
goods and materials, as well as intangible support such as "personnel"
In Section 805 of the Patriot Act, the definition was expanded to
include "expert advice and assistance" -- a definition deemed
unconstitutionally vague in Federal Court. In response,
Congress passed the Intelligence Reform and Terrorism Prevention Act of
2004. The Act provided more detailed definitions of the
terms "personnel," "training," and "expert advice or assistance" (§
6603(b)). It also amended the material support provision, requiring a
person to have "knowledge that the organization is a designated
terrorist organization,... that the organization has engaged or engages
in terrorist activity,... or that the organization has engaged in or
engages in terrorism." (§ 6603(c)(2)).
After a noble effort by the U. S. House of Representatives to seemingly
narrow the definition of terrorist organizations and material supporters
thereof, the refugee and human rights community was shocked and appalled
by the introduction of the patently anti-refugee provisions of the REAL
ID Act of 2005 initially passed by the House. Many lengthy articles have
already been written on the subject, and the outcry was swift and
widespread. Groups ordinarily at odds with each other joined together to
protect the most vulnerable from unconscionable burdens of proof,
utterly impossible documentary requirements, and impermissible and
unreviewable discretion placed in a single trier of facts that could
have rested determinations on no more than a refugee's perceived
"demeanor." Ultimately, the Act was reconciled with the U. S. Senate in
a form less detrimental to legitimate asylum seekers. Yet, the effects
of these Acts have so impinged on existing immigration laws, that
persecuted refugees face harsher treatment in the United States than
Members of many ethnic and religious minority groups who have fled
terror and persecution in their homelands now face being mislabeled
"terrorists" by the United States and turned away from our shores. Among
the most vulnerable are the Chin of Burma. As the authors have become
personally and professionally involved in the cases of two Chin refugees
in recent months, it is with their cases in mind that we write this
article. The asylum applicants will be referred to in this article only
as Mrs. MSK and Mr. ZC. The applicants are unrelated, and their lives
took different turns. But, what they have in common is that both are of
the Chin ethnic minority in Burma and both now face being barred from
asylum for having resisted the brutal forces that sought their demise,
along with the annihilation of their people.
Widespread human rights abuses are committed systematically against
ethnic and religious minorities in Burma (renamed "Myanmar" by the
illegitimate military junta ruling the government). Burma has been
savagely ruled for decades by this military junta that is not recognized
by the United States. The abysmal human rights record has been
well-documented by the U.S. Department of State and countless
non-governmental human rights organizations. Ethnic minorities,
particularly the Chin, Karin, and Karinni, are routinely and
systematically subjected to torture, rape, forced servitude, and
execution. Minority homes, lands, and crops necessary for survival are
destroyed systematically by the military junta, which acts with impunity.
Human rights activists argue that the gross and systematic attacks by
the Burmese military on its own civilian population amount to acts of
state-sponsored terrorism and certainly constitute Crimes Against
Humanity if not Genocide. The brutal terror directed against the ethnic
Chin minority has given rise to a necessary resistance movement. Groups
of ethnic minorities in Burma have naturally joined together to defend
themselves, their people, and their homeland from tyranny and
destruction. Such groups include the National Democratic Front (NDF),
the Chin National Front (CNF), and earlier the Chin National Army (CAN).
All of these organizations have admittedly taken up arms to resist the
brutal regime and to fight for the survival of their people in an
ongoing struggle to protect the Chin from torture, rape, murder, and
Both Mr. ZC and Mrs. MSK are members of the Chin ethnic minority. Mr. ZC
was widely-known in Burma as a pro-democracy advocate and political
dissident. He was an active member of the organizations listed above. As
such, he could be barred from asylum under INA § 212(a)(3)(B).
Mrs. MSK was never herself a member of any organized resistance group.
She did, however, provide a portion of her meager finances to support
those engaged in resisting the savage military junta government on her
behalf. But because of her small contribution to the CNF, and because
she provided a few household items to the group, she was denied asylum
on account of having provided "material support to a terrorist
It should be noted that none of the Chin groups have been designated as
terrorist organizations by the Attorney General. Rather, Mrs. MSK was
labeled as such because of the overly broad and easily abused provisions
of INA § 212(a)(3)(B). Such a bar was never intended by Congress, and
would have cataclysmic implications not only for Mrs. MSK and Mr. ZC,
but for the most brutally oppressed and intensely vulnerable ethnic and
religious minorities in the world.
The following arguments address only the narrow issue described as it
has broad implications to refugees of the Chin, Karin, Karinni, and
other ethnic and religious minorities who have endured decades of gross
and systematic human rights violations, arguably amounting to genocide
of their tribes, at the hands of Burma's brutal and illegitimate ruling
military junta. Acts of self-defense against such tyranny is inherently
not unlawful and specifically not unlawful in the United States.
To consider a human being either "a terrorist" or a material supporter
of terrorism for either taking up arms to protect his own life or the
lives of others, or for joining those engaged in countering tyranny on
his behalf and the behalf of his people, would be reprehensible and in
stark contradiction both to recognized inalienable rights and to the
firm foundation and great humanitarian traditions of the United States.
Mankind's inherent and natural right to self-defense and preservation of
life and property is firmly established in our Constitution and Bill of
Rights and in volumes of writings by our nation's founding fathers. This
inalienable right has been recognized for centuries, and in the common
law traditions upon which our nation was founded. It is inconceivable
that the United States Congress contemplated legislating away this
inherent right without an explicit abrogation of such common law and
Constitutionally recognized right within the text of INA § 212(a)(3)(B).
Neither natural law nor congressional intent supports the barring from
asylum of those who have exercised their inherent and legal right to
self-defense. It is respectfully submitted that the U.S. must not bar
from asylum those like Mrs. SWK and Mr. ZC, who have simply participated
in the resistance movement necessary to protect the Chin ethnic minority
from state-sponsored terror.
Perhaps more than any other natural and inherent right, the right to
self-defense is fundamental. The U.S. Constitution, the Bill of Rights,
the Constitutions of 44 States, and the laws of all 50 States recognize
the right to use arms in one's self-defense. Before extending
consideration to the myriad of writings recognizing this right, it is
logical to look to our nation's founding documents, and the clear and
stated intent of our founding fathers -- beginning with the Constitution.
Thomas Jefferson, in a letter to William Johnson, wrote:
On every question of construction [of the Constitution] let us
carry ourselves back to the time when the Constitution was
adopted, recollect the spirit manifested in the debates, and
instead of trying what meaning may be squeezed out of the
text, or invent against it, conform to the probable one in which
it was passed.
So with regard to the right to bear and use arms in self-defense and
resistance, we begin with those involved in the Constitutional process.
Samuel Adams, during debates and proceedings in the 1788 U.S.
Constitution ratification convention in Massachusetts, said:
That the said Constitution [shall] be never construed to authorize
Congress to infringe the just liberty of the press, or the rights of
conscience; or to prevent the people of the United States, who are
peaceable citizens, from keeping their own arms.
James Madison of Virginia wrote:
The Constitution preserves the advantage of being armed which
Americans possess over the people of almost every other nation.... (where) the governments are afraid to trust the people with arms.
To the founding fathers, the right to self-defense and the right to bear
arms was not only constitutional, but pre-existed the Constitution. They
believed it an inherent, natural right that no man may take away.
Fisher Ames, Delegate to the Massachusetts Constitutional Ratification
Convention of 1788, who was later elected to the U.S. House of
Representatives in 1789, wrote:
The rights of conscience, of bearing arms, of changing the
government, are declared to be inherent in the people.
Ames wrote the previous year:
It is a natural right which people have reserved to themselves,
confirmed by the [English] Bill of Rights, to keep arms for their
own defense; and as Mr. Blackstone observes, it is to be made
use of when the sanctions of society and law are found insufficient
to restrain the violence of oppression.
Samuel Adams wrote:
Among the natural rights of the Colonists are these: First, a right
to life; Secondly, to liberty; Thirdly, to property; together with the
right to support and defend them in the best manner they can....
it is the greatest absurdity to suppose it in the power of one, or any
number of men, at entering into society, to renounce their essential
natural rights, or the means of preserving those rights; when the
grand end of civil government, from the very nature of its institution,
is for the support, protection, and defense of those very rights; the
principal of which, as is before observed, are Life, Liberty, and
Property. If men, through fear, fraud, or mistake, should in terms
renounce or give up any essential natural right, the eternal law of
reason and the grand end of society would absolutely vacate such
renunciation. The right to freedom being the gift of God Almighty,
it is not in the power of man to alienate this gift and voluntarily
become a slave.
Clear words, a clear intent, and clearly no room for interpretation. The
right of mankind to take up arms in self-defense pre-existed the laws of
man, and neither law nor man can deny this inherent right. The early
courts recognized and upheld these truths.
If cowardly and dishonorable men sometimes shoot unarmed
men with army pistols or guns, the evil must be prevented by
the penitentiary and gallows, and not by a general deprivation
of a constitutional privilege.
The right to bear arms has roots in the common law heritage of our
nation, and was specifically recognized by our founding fathers.
Alexander Hamilton and James Madison, among others, specifically
intended that the Second Amendment would provide an individual right to
keep and bear arms.
If the representatives of the people betray their constituents,
there is then no recourse left but in the exertion of that
original right of self defense which is paramount to all positive
forms of government.
Albert Gallatin of the New York Historical Society, wrote on October 7,
The whole of the Bill [of Rights] is a declaration of the right of the
people at large or considered as individuals.... It establishes some
rights of the individual as unalienable and which consequently,
no majority has the right to deprive them of.
Tench Coxe, a prominent Federalist from Pennsylvania and author of the
commentary /American Citizen, confirmed:
Congress has no power to disarm the militia. Their swords,
and every other terrible implement of the soldier, are the
birth-right of an American... the unlimited power of the sword
is not in the hands of either the federal or state governments,
but, where I trust in God it will ever remain, in the hands of the
George Mason of Virginia agreed:
That the people have a Right to mass and to bear arms; that a
well regulated militia composed of the Body of the people,
trained to arms, is the proper natural and safe defense of a free
And Thomas Jefferson's intentions were never in question:
The constitutions of most of our States assert that all power
is inherent in the people; that... it is their right and duty to
be at all times armed.
Richard Henry Lee fought under George Washington, introduced the motion
leading to the Declaration of Independence, and was himself a signer of
the Declaration of Independence. Lee served as U.S. Senator from
Virginia, and helped secure ratification of U.S. Bill of Rights. He wrote:
... of the liberty of conscience in matters of religious faith, of
speech and of the press; of the trial by jury of the vicinage in
civil and criminal cases; of the benefit of the writ of habeas
corpus; of the right to keep and bear arms.... If these rights are
well defined, and secured against encroachment, it is impossible
that government should ever degenerate into tyranny.
The inherent right to self-defense has been strongly recognized for
centuries. Justinian wrote in 529 A.D.:
That which someone does for the safety of his body, let
it be regarded as having been done legally.
Our pre-colonial common law fathers recognized these unalienable rights
as well. Sir William Blackstone, the great English jurist often referred
to as the "father of English common law," observed in his 1766
Commentaries on the Laws of England, that the English Bill of Rights
recognized "the right of having and using arms for self-preservation and
defense" as one of the five auxiliary rights people possess "to protect
and maintain inviolate the three great and primary rights," the first of
which is "personal security." Blackstone continued:
Self defense is justly called the primary law of nature, so it is not,
neither can it be in fact, taken away by the laws of society.
Blackstone termed the use of arms for self-preservation and defense an
"auxiliary" right, because it was one of the subordinate rights which
were to guarantee the existence and enjoyment of the primary rights of
personal security, personal liberty and private property. Id., at 141.
Thus at common law, the right to keep and bear arms was an
individual right -- not merely for its own sake -- but recognized
as a natural and vital instrument for defense and self-protection.
It constituted the final barrier from oppression in any form, private
or governmental. Another authoritative statement from this era is
from Pleas of the Crown; "every private person seems authorized
by the Law to Arm himself for [various] purposes." 1 Hawkins,
Pleas of the Crown, Ch. 28, §14 (7th ed. 1795).
There exists a wealth of common law and colonial history that
indicates that both Englishmen and pre-revolutionary colonists
possessed that individual right to keep and bear arms. It is well
known that the founding fathers of this nation recognized Sir
William Blackstone as an authority of the common law. Therefore,
it should be highly probative of the founding fathers' understanding
of an individual's rights to review a portion of Blackstone's
authoritative treatise of the common law. 
Blackstone was not alone. Sir Michael Foster, judge of the Court of
King's Bench, wrote:
The right of self-defence in these cases is founded in the law of
nature, and is not, nor can be, superseded by any law of society.
For before societies were formed, (one may conceive of such a
state of things though it is difficult to fix the period when civil
societies were formed,) I say before societies were formed for
mutual defence and preservation, the right of self-defence resided
in individuals; it could not reside elsewhere, and since in cases of
necessity, individuals incorporated into society cannot resort for
protection to the law of the society, that law with great propriety
and strict justice considereth them, as still, in that instance, under
the protection of the law of nature.
In Institutes of the Laws of England, 1628, Sir Edward Coke wrote:
And yet in some cases a man may not only use force and arms,
but assemble company also. As any may assemble his friends and
neighbors, to keep his house against those that come to rob, or kill
him, or to offer him violence in it, and is by construction excepted
out of this Act; and Sheriff, etc., ought not to deal with him upon
this Act; for a man's house is his Castle, and a person's own house
is his ultimate refuge; for where shall a man be safe, if it be not in
his house. And in this sense it truly said, and the laws permit the
taking up of arms against armed persons."
Perhaps John Locke states it most concisely in Two Treatises of
Must men alone be debarred the common privilege of opposing
force with force, which nature allows so freely to all other creatures
for their preservation from injury? I answer: self defense is a part of
the law of nature, nor can it be denied the community, even against
the king himself....
Self-defense and preservation from injury is indeed a part of the law of
nature that can never be denied. This natural right is inherent, and
extends to all mankind -- even to the persecuted Chin of Burma.
In the same volume, John Locke boldly writes:
And hence it is, that he who attempts to get another man into his
absolute power, does thereby put himself into a state of war with
him; it being to be understood as a declaration of a design upon his
life. This makes it lawful for a man to kill a thief, who has not in
the least hurt him, nor declared any design upon his life, any further
than by the use of force, so to get him in his power, as to take away
his money, or what he pleases from him: because using force, where
he has no right, to get me into his power, let his pretense be what it
will, I have no reason to suppose that he, who would take away my
liberty, would not when he had me in his power, take away everything
else. And therefore it is lawful for me to treat him as one who has put
himself into a state of war with me, i.e. kill him if I can; for to that
hazard does he justly expose himself, whoever introduces a state of
war, and is aggressor in it.
Echoing this sentiment, Algernon Sidney wrote in Discourses Concerning
Civil Government, 1698: "Swords were given to men, that none might be
Slaves, but such as know not how to use them."
Baron De Montesquieu wrote in The Spirit of the Laws, 1748: "Who does
not see that self-defense is a duty superior to every precept?" If only
the Immigration Judge shared this understanding.
Cesare Beccaria observed in 1764:
It is a false idea of utility to sacrifice a thousand real advantages for
the sake of one disadvantage which is either imaginary or of little
consequence; this would take fire away from men because it burns
and water because it drowns people; this is to have no remedy for
evils except destruction. Laws forbidding people to bear arms are
of this nature; they only disarm those who are neither inclined nor
determined to commit crimes. On the other hand, how can someone
who has the courage to violate the most sacred laws of humanity
and the most important ones in the statute books be expected to
respect the most trifling and purely arbitrary regulations that can be
broken with ease and impunity and that, were they enforced, would
put an end to personal liberty -- so dear to each man, so dear to the
enlightened legislator -- and subject the innocent to all the vexations
that the guilty deserve? Such laws place the assaulted at a
disadvantage and the assailant at an advantage, and they multiply
rather than decrease the number of murders, since an unarmed
person may be attacked with greater confidence than someone who
is armed. These laws should not be deemed preventive, but rather
inspired by a fear of crime. They originate with the tumultuous
impact of a few isolated facts, not with a rational consideration of
the drawbacks and advantages of a universal decree.
And Daniel Webster of Massachusetts famously proclaimed, "God grants
liberty only to those who love it, and are always ready to guard and
There is no question that the founding fathers counted as natural,
inherent, and of infinite importance, the right to use arms for
self-preservation and defense. American colonists explicitly reserved
the right to bear arms in 1774. Moreover, State constitutions written
during the Revolutionary War period contained an explicit right to bear
arms, and indicate awareness that such a right was an integral feature
in any list of freedoms. As these early State constitutions served as
models for the federal Bill of Rights, a few examples are in order.
Vermont: "... the people have a right to bear arms for the defense of
themselves and the State..."; Massachusetts: "The people
have a right to keep and bear arms for the common defense"; Id., at 337,
342. New York: "And whereas it is of the utmost importance to the safety
of every State that it should always be in a condition of defense; and
it is the duty of every man... to be prepared and willing to defend
it..."; Id., at 301, 312. Pennsylvania: "... the people have a right
to bear arms for the defense of themselves and the State...."; Id., at
No one knew better than America's founders the importance of an armed
population that could defend itself from tyranny. The founders
understood that the first step tyrannical governments take to control
and enslave the people of a nation is to disarm them.
George Mason was a Virginia delegate to the Constitutional Convention of
1787, and a delegate to the Virginia Constitutional Ratification
Convention of 1788. He also helped Thomas Jefferson draft the Virginia
Declaration of Rights, which served as the basis for the U.S. Bill of
Rights. According to Mason:
[W]hen the resolution of enslaving America was formed in
Great Britain, the British Parliament was advised by an artful
man, who was governor of Pennsylvania, to disarm the people;
was the best and most effectual way to enslave them; but that
they should not do it openly, but weaken them, and let them sink
gradually... I ask, who are the militia? They consist now of the
whole people, except a few public officers.
Fellow Virginian, Patrick Henry, agreed:
Are we at last brought to such humiliating and debasing
degradation that we cannot be trusted with arms for our defense?
Where is the difference between having our arms in possession
and under our direction, and having them under the management
of Congress? If our defense be the real object of having those arms,
in whose hands can they be trusted with more propriety, or equal
safety to us, as in our own hands?
During Virginia's U.S. Constitution ratification convention, Henry
continued: "Guard with jealous attention the public liberty. Suspect
everyone who approaches that jewel."
Forseeing what might likely befall a nation that arms its government and
military, but forbids arms for the people, Tench Coxe of Pennsylvania wrote:
As civil rulers, not having their duty to the people before them,
may attempt to tyrannize, and as the military forces which
must occasionally be raised to defend our country, might pervert
their power to the injury of their fellow citizens, the people are
confirmed by the next article (of amendment) in their right to keep
and bear their private arms.
It is ludicrous to suppose that our great nation would now punish those
who adhere to these very principles, by denying them refuge and
returning them to the savage tyrants who seek their demise.
Even Mahatma Ghandi recognized forced disarming as "the blackest" of
Great Britain's strategies in enslaving the Indian people: "Among the
many misdeeds of the British rule in India, history will look upon the
act of depriving a whole nation of arms, as the blackest."
Elbridge Gerry was a Massachusetts delegate to the Constitutional
Convention of 1787, a delegate to the Massachusetts Ratification
Convention of 1788, and the Vice President of the United States during
President James Madison's second term (from 1813 until his death in
1814). Gerry too recognized this great evil:
What, sir, is the use of militia? It is to prevent the establishment
of a standing army, the bane of liberty.... Whenever Government
means to invade the rights and liberties of the people, they always
attempt to destroy the militia, in order to raise a standing army
upon its ruins.
Prominent newspapers of the era echoed this sentiment. In the January 7,
1788 Hartford Courant (Connecticut):
Tyrants never feel secure, until they have disarmed the people. But
the people of this country have arms in their hands; they are not
destitute of military knowledge; every citizen is required by Law
to be a soldier; we are all martialed into companies, regiments, and
brigades, for the defense of our country. This is a circumstance
which increases the power and consequence of the people; and enables
them to defend their rights and privileges against every invader.
In the April 23, 1788 Pennsylvania Gazette:
God forbid we should ever be twenty years without such a rebellion....
And what country can preserve its liberties, if its rulers are not warned
from time to time, that this people preserve the spirit of resistance?
Let them take arms....
And in the October 12, 1789 Fayetteville Gazette (North Carolina):
While the people have property, arms in their hands, and only a
spark of noble spirit, the most corrupt Congress must be mad to
form any project of tyranny.
Quotes from our founding fathers on the Constitutional, natural,
inherent, and inalienable right to bear and take up arms in self-defense
and self-preservation are voluminous. Patrick Henry said:
No free government was ever founded or ever preserved its
liberty, without uniting the characters of the citizen and soldier
in those destined for the defense of the state.
The great object is that every man be armed. Everyone who is
able may have a gun. <
Have we no means of resisting disciplined armies, when our
only defense, the militia, is put in the hands of Congress? Of
what service would the militia be to you when, most probably,
you will not have a single musket in the state? For, as arms are
to be provided by Congress, they may or may not provide them.
They tell us, Sir, that we are weak... but when shall we be stronger?
Will it be when we are totally disarmed?
Thomas Jefferson put it succinctly in the proposed Virginia
Constitution, 1776: "No free man shall ever be debarred the use of
arms." In his Commonplace Book (1774-1776), Jefferson wrote:
Laws that forbid the carrying of arms... disarm only those who
are neither inclined nor determined to commit crimes. Can it be
supposed that those who have the courage to violate the most sacred
laws of humanity will respect the less important and arbitrary ones....
Such laws make things worse for the assaulted and better for the
assailants; they serve rather to encourage than to prevent homicides,
for an unarmed man may be attacked with greater confidence than an
Nothing could more clearly describe the situation for the ethnic and
religious minority Chin people of Burma. Should the ravaged Chin lie
down and accept the rape, torture, and murder of their people and the
utter destruction of their lands and crops? It would be nothing short of
madness to consider an attempt at self-defense and preservation by a
people marked for genocide as "terrorism."
Burma is governed by a repressive racist military regime that
perpetuates political and economic domination for the Burmese ethnic
majority by violently persecuting ethnic minority groups. Just this
year, the U.S. Department of State (USDOS) reported:
Wide-ranging governmental and societal discrimination against
minorities persisted. Animosities between the country's many
ethnic minorities and the Burman majority, which has dominated
the Government and the armed forces since independence,
continued to fuel active conflict that resulted in serious abuses
during the year. These abuses included reported killings, beatings,
torture, forced labor, forced relocations, and rapes of Chin, Karen,
Karenni, Shan, Mon, and other ethnic groups by SPDC soldiers.
Some armed ethnic groups also may have committed abuses, but
on a much smaller scale than the Burmese Army (see Sections
1.a., 1.c., 1.f., and 1.g.). 
Although the genocidal rampage of Burma's military junta has been
directed against ethnic minorities, the religious element cannot be
ignored. The U.S. Secretary of State has designated Burma a "country of
particular concern" under the International Religious Freedom Act for
particularly severe violations of religious freedom every year since the
designation was introduced in 1999. The U.S. Commission on International
Religious Freedom (USCIRF) reports:
Repression by the military regime in Burma is widespread and
continues systematically to include severe violations of religious
freedom and other abuses. The government exercises strict control
over many religious activities, imposes restrictions on certain
religious practices, and, in some areas of the country, forcefully
promotes Buddhism over other religions.
Members of minority religious groups, especially those in the
ethnic minority areas, face serious abuses of religious freedom
and other human rights on account of their religion. In some
localities, the military reportedly has forcibly conscripted members
of religious minorities as porters and killed those who have refused.
Christians have been forced to engage in the destruction of churches
and graveyards for the purpose of clearing sites for military camps.
And according to the U.S. State Department:
There continued to be evidence that Christian Chins were pressured
to attend Buddhist seminaries and monasteries and were encouraged
to convert to Buddhism. In April, an exile Chin human rights group
reported that local authorities forced 15 Chin pastors to participate
in Buddhist New Year events to demonstrate "unity" with Burman
Buddhists. The same human rights group claimed that local
government officials lodged the children of Chin Christians in
Buddhist monasteries in which they were given religious
instruction and converted to Buddhism without their parents'
knowledge or consent. Reports suggested that the Government
sought to induce members of the Naga ethnic group in Sagaing
Division to convert to Buddhism by similar means.
Should such atrocities be committed against the people of the United
States, our founding fathers had clear instructions. Thomas Jefferson wrote:
And what country can preserve its liberties, if its rulers are not
warned from time to time that this people preserve the spirit of
resistance? Let them take arms.... The tree of liberty must be
refreshed from time to time with the blood of patriots and tyrants.
It is its natural manure.
This "spirit of resistance" is all the Chin people have to preserve
their lives. But a spirit of resistance without arms with which to
defend themselves would be both an exercise in futility and an
invitation to further enslavement and slaughter.
It is difficult to find a single founding father who did not agree. Noah
Webster, of Pennsylvania wrote:
Before a standing army can rule, the people must be disarmed;
as they are in almost every kingdom in Europe. The supreme
power in America cannot enforce unjust laws by the sword;
because the whole body of the people are armed, and constitute
a force superior to any band of regular troops that can be, on any
pretence, raised in the United States. A military force, at the
command of Congress, can execute no laws, but such as the people
perceive to be just and constitutional; for they will possess the
power, and jealousy will instantly inspire the inclination, to resist
the execution of a law which appears to the unjust and oppressive.
Alexander Hamilton, of New York wrote:
[I]f circumstances should at any time oblige the government to
form an army of any magnitude, that army can never be formidable
to the liberties of the people while there is a large body of citizens,
little if at all inferior to them in discipline and the use of arms, who
stand ready to defend their rights and those of their fellow
Thomas Paine, of Pennsylvania wrote:
Weakness allures the ruffian, but arms, like laws, discourage
and keep the invader and plunderer in awe, and preserve order
in the world as well as property. Horrid mischief would ensue
were the law-abiding citizens deprived of the use of them, and
the weak will become a prey to the strong.
John Adams, in his A Defense of the Constitutions of the Government of
the United States of America, 1788, addressed specifically the
absurdity of not allowing citizens to keep arms for their own defense:
To suppose arms in the hands of citizens, to be used at individual
discretion, except in private self-defense... is a dissolution of the
The founders recognized beyond a shadow of a doubt that governments can
become tyrannical, and that individual citizens must have the strength
and the arms to protect themselves in such event. Thomas Jefferson took
it a step further in recognizing the right of the people not only to
stand their ground, but to overthrow and institute a new government when
necessary. A shocking, obscure writing you suggest? Hardly -- these are
Jefferson's words in the third sentence of the Declaration of
...that, whenever any form of government becomes destructive
of these ends, it is the right of the people to alter or abolish it,
and to institute a new government, laying its foundations on such
principles, and organizing its powers in such form, as to them
shall seem most likely to effect their safety and happiness.
With regard to our own nation, the Second Amendment right to keep and
bear arms has become both fundamental, and a right firmly established in
our great tradition. And over more than two hundred years, private gun
ownership has become engrained in our concept of "liberty" under the due
process clauses of the Fifth and Fourteenth Amendments. Moreover, there
unquestionably exists a natural right of an individual in his personal
security and a concomitant right to protect one's family and self.
The Ninth Amendment indicates that the Bill of Rights is not an
exhaustive list of freedoms enjoyed by the people. The U.S. Supreme
Court has consistently found fundamental rights existing under the due
process clauses of the Fifth and Fourteenth Amendments. Thus in addition
to the Second Amendment's right to bear arms, and the due process
clauses of the Fifth and Fourteenth Amendment applying this right to the
States, the "people" of the United States have "retained" the right to
keep and bear arms for more than two hundred years, and this right must
certainly be recognized as fundamental under the Ninth Amendment.
Early U.S. Supreme Court Justices recognized the natural inherent right
of individuals to self-defense and to bear arms. Justice Joseph Story, a
U.S. Supreme Court Justice from 1812 to 1845 wrote:
The right of the citizens to keep and bear arms has justly been
considered a palladium of the liberties of a Republic; since it
offers a strong moral check against usurpation and arbitrary power
of rulers and will generally, even if these are successful in the first
instance, enable people to resist and triumph over them.
…One of the ordinary modes, by which tyrants accomplish their
purposes without resistance, is, by disarming the people, and making
it an offence to keep arms, and by substituting a regular army in the
stead of a resort to the militia. The friends of a free government
cannot be too watchful, to overcome the dangerous tendency of the
public mind to sacrifice, for the sake of mere private convenience,
this powerful check upon the designs of ambitious men.
In U.S. v. Cruikshank(92 U.S. 542, (1876), the U.S. Supreme Court
recognized that the right to arms preexisted the Constitution and is
thus an individual right. Chief Justice Morrison R. Waite, issued the
majority opinion, in which he wrote:
The right there specified is that of "bearing arms for a lawful
purpose." This is not a right granted by the Constitution. Neither
is it in any manner dependent upon that instrument for its existence.
The second amendment declares that it shall not be infringed; but
this, as has been seen, means no more than that it shall not be
infringed by Congress. This is one of the amendments that has no
other effect than to restrict the powers of the national government,
leaving the people to look for their protection against any violation
by their fellow-citizens of the rights it recognizes, to what is called.... the "powers which relate to merely municipal legislation, or what
was, perhaps, more properly called internal police," "not surrendered
or restrained" by the Constitution of the United States.
In Beard v. U.S.(158 U.S. 550, 1895), the Court approved the
common law rule that a person "may repel force by force" in
self-defense, and concluded that when attacked a person "was entitled to
stand his ground and meet any attack made upon him with a deadly weapon,
in such a way and with such force" as needed to prevent "great bodily
injury or death."
In Presser v. Illinois, 116 U.S. 252 (1886), the U.S. Supreme Court
decision suggested that the Second Amendment applies to the states
through the 14th Amendment and thus that a state cannot forbid
individuals to keep and bear arms for lawful purposes.
In addition to the clearly stated intentions of our founding fathers and
early U.S. Supreme Court justices, the laws of all 50 states and the
constitutions of 44 states recognize the right to use armed force in
self-defense. There is simply no question that among the
chief fundamental rights upon which our nation was founded, is the
natural, inherent, right of every human being to bear and take up arms
for self-defense and preservation.
It would thus be absurd and wholly un-American to suggest that our
lawmakers and the jurists charged with interpreting our laws would deny
refuge and asylum to victims of widespread, systematic, and horrifically
violent persecution on the basis that these refugees joined or supported
organizations formed to resist the brutal and tyrannical regime seeking
It is of grave concern that the potential application of the label
"terrorist" to a group of self-defenders will remove the ability of
those forced to engage in self-defense from seeking to flee persecution
and torture, remove them from consideration of refugee protection,
deprive them of their fundamental, natural, and unquestionably inherent
right of self-defense, and banish them to certain torture and death.
This was never the intention of our founding fathers, and it must never
be accepted as legal or moral by those now writing, enforcing, and
interpreting laws in our great nation.
The beliefs and intents of our founders are clearly preserved in records
of their own powerful words. Among their most compelling beliefs, is
that human beings are endowed by their Creator with a natural and
inherent right to protect themselves from tyranny, and to do so with the
use of arms. This right pre-existed our Constitution and all man-made
laws, and will exist until the end of time. Thus any provision in modern
law that seemingly seeks to, or inadvertently results in, denying this
right is inherently flawed and wholly unenforceable.
To suggest that a human being is in any way "a terrorist" or supporter
of terrorism for either taking up arms to protect his own life, or for
providing financial or other support to those engaged in countering
tyranny on his behalf, would be reprehensible and in stark contradiction
both to the laws of nature, and to the firm foundation and great
humanitarian traditions of the United States. And to deny asylum and
refuge to such a one simply can never be.
The inherent natural right of self-defense, along with the Common Law and
Constitutional right to bear and use arms against aggressors and tyrants
recognized as a fundamental right which abrogation was not contemplated
within INA § 212(a)(3)(B)'s bar to asylum. And the exercise by Mr. ZC
and Mrs. MSK of this inherent right must not serve as the basis to
return them to those who seek their death.
Congressional intent behind INA § 212(a)(3)(B) was never to bar from
asylum those who have defended their lives from brutal tyranny.
Acts of self-defense are inherently not unlawful and
specifically not unlawful in the United States. Self-defense is a
defense to otherwise criminal acts in all 50 states. Congress did not
intend to punish the oppressed and reward the tyrant. To suggest so is
to discard more than two centuries of benevolent humanitarian
legislation designed to protect and uphold the rights of the vulnerable.
The relevant portions of INA § 212(a)(3)(B) are:
INA 212 (a)(3)(B)
(B) Terrorist activities--
(i) IN GENERAL. Any alien who--
(I) has engaged in a terrorist activity,
(iii) TERRORIST ACTIVITY DEFINED. As used in this Act, the
term "terrorist activity" means any activity which is unlawful under the
laws of the place where it is committed (or which, if it had been
committed in the United States, would be unlawful under the laws of the
United States or any State) and which involves any of the following:
(V) The use of any--
(b) explosive, firearm, or other weapon or dangerous device
(other than for mere personal monetary gain), with intent to
endanger, directly or indirectly, the safety of one or more
individuals or to cause substantial damage to property.
(iv) ENGAGE IN TERRORIST ACTIVITY DEFINED. As used
in this chapter, the term "engage in terrorist activity" means, in an
individual capacity or as a member of an organization--
(VI) to commit an act that the actor knows, or reasonably should know,
affords material support, including a safe house, transportation,
communications, funds, transfer of funds or other material financial
benefit, false documentation or identification, weapons (including
chemical, biological, or radiological weapons), explosives, or training--
(bb) to any individual who the actor knows, or reasonably should know,
has committed or plans to commit a terrorist activity....
Were Immigration Judges and the Department of Homeland Security too
broadly apply these selected portions of INA § 212(a)(3)(B) devoid of an
understanding of both Congressional intent and the intentions of our
nation's founders, countless persecuted refugees would be denied asylum.
In fact, every persecuted individual who has ever lent a helping hand, a
few shekels, or a warm meal to a person or group protecting them from
brutal tyrants would be barred from asylum. And any group engaged in
what our founding fathers cherished as the inherent right to "resist,"
would be labeled terrorists. Therefore, INA § 212(a)(3)(B) cannot be so
broadly read as to abrogate the common-law right and Constitutional
right of self-defense. The relevant sections of the Constitutions of all
50 states of this union recited on pages 19-21, supra, reveal that the
Respondent's actions did not violate the laws of any State of this Union.
Too illustrate, a widely publicized case comes immediately to mind. On
April 23, 2003, the Department of Homeland Security (DHS) granted asylum
to Mohammed Odeh Al Rehaief. Mr. Al Rehaief is the Iraqi citizen who
risked his life to provide information to U.S. Marines that led to the
rescue of Private Jessica Lynch from a hospital in Nassiriyah, Iraq. The
United States was so proud of this asylum grant that press releases were
issued on April 29, 2003 by both the White House and
But an overly broad application of INA § 212(a)(3)(B) to Mr. Al
Rehaief's case would have had a far darker outcome. As the U.S. Marines
were engaged in the use of firearms "with intent to endanger, directly
or indirectly, the safety of one or more individuals or to cause
substantial damage to property," they would be labeled a "terrorist
organization" engaged in "terrorist activities" under this provision.
An overly broad application would not take into consideration the nature
of the armed conflict in which the marines were engaged, or their noble
intentions to liberate a people oppressed for decades under a brutal
dictatorial regime. It would look only to the fact that the "terrorists"
(i.e., our brave Marines) used guns in violation of the laws of Sadam
Hussein's Iraq with the intent to endanger those loyal to Saddam
Hussein. And of course Mr. Al Rehaief had provided material support to
this "terrorist organization," as he had provided "communications" to them.
One would immediately argue that when the U.S. military engages in armed
defense, or in this case armed aggression, it would be preposterous to
suggest they were engaged in terrorist activities. This widely
publicized example illustrates the fact that not all armed actors are
terrorists, and not all individuals who assist them are guilty of
material support of terrorism.
Immigration Judges must not apply an overly broad interpretation of the
law such as to discard the common law and Constitutional rights of
self-defense which INA § 212(a)(3)(B) does not explicitly abrogate. Our
nation was born out of resistance to and liberation from tyrants. We
have cherished and embraced for more than two hundred years our inherent
right to protect and preserve our lives and liberty.
Our government has encouraged, supported, and even armed those engaged
in similar struggles in their homelands. It would be the height of
hypocrisy to consider turning our backs on those who have embraced the
values we hold dear.
It is essential that the United States uphold both its own fundamental
values, and its international treaty obligations to protect persecuted
refugees -- not to forcibly refoul them to countries where they would
likely suffer torture and death. It is anathema to U.S. jurisprudence
and tradition, as well as to our treaty obligations with regard to the
protection of refugees, that groups of persecuted religious and/or
ethnic minorities who have banded together to defend themselves against
gross and systematic torture, rape, and execution be labeled "terrorist
organizations," and those who resist their oppressors be barred from
seeking asylum. Congress removed the right of terrorists to receive
asylum, withholding of removal, and withholding under the convention
against torture. It certainly did not and would not, however, bar from
these protections refugees who have exercised the right of self defense
against tyranny and state-sponsored terrorism.
Indeed, the U. S. Congress provided within the Patriot Act and
maintained within the REAL ID Act a waiver provision whereby the
Secretary of the Department of Homeland Security and the Secretary of
the Department of State, after consultation with one another and the
Attorney General, may determine that the material support to a terrorist
organization ground of inadmissibility does not apply to an individual
or a specific organized group. However, although government lawyers from
these departments have met regularly to establish guidelines and a
procedure to implement this waiver authority, to date no action has been
taken. Consequently, Immigration Judges have been left without guidance
and have over-broadly applied the material support provisions cited
above to deny asylum, withholding of removal, and the Convention Against
Torture relief from removal. In the case of Mrs. MSK whose "material
support" consisted of giving a flashlight and raincoats to members of
one of the Chin resistance organizations, this lady remains in a US
immigration detention facility pending the outcome of her appeal to the
Board of Immigration Appeals. Should this decision prevail, Mrs. MSK
will have been stripped of refugee protection on account of supporting
her inherent right of self-defense and will be returned into the hands
of the military junta whose atrocities our government otherwise condemns.
A natural inherent right exists to self-defense even when the exercise
of that right necessitates armed resistance. In light of the overly
broad interpretation of the material support bar by the Department of
Homeland Security District Counsels and Department of Justice
Immigration Judges, Congress' effort to narrow the relevant provision in
the Intelligence Reform and Terrorism Prevention Act of 2004 has failed
this Constitutional test. Since the natural and inherent right to
self-defense was not abrogated by Congress in the Patriot's Act, asylum
seekers who engage in that right against tyranny should not be barred in
the event that they may have provided "material support" to a group
engaged in defending the defenseless. Either the Executive Branch must
implement its authority to grant waivers to the bar, or this overbroad
provision will again be found un-Constitutional.
It would be deeply at odds with our history and our values as a nation
to shun a minority group organized for the sole purpose of defending its
people against gross and systematic raping and torture of villagers,
pillaging, forced portering, mass destruction of villages, infanticide,
and summary executions. These atrocities are routinely committed in
Burma, carried out with impunity by an armed military junta at the
behest of one of the most brutal and repressive illegitimate regimes on
Earth propped up by drug trafficking, specifically on account of the
ethnic and religious identity of the displaced and brutalized Chin,
Karin, and Karinni people. Currently some 10,000 ethnic and religious
minority refugees from Burma are unable to begin the process for refugee
resettlement in the United States because of their support of ethnic or
religious organizations that oppose the repressive military regime in
It is essential that the United States protect our country from
terrorists, terrorist organizations, and those who provide
unquestionable material support to terrorists -- such as knowingly
providing flight training to suicide hijackers or knowingly providing
bomb-making instructions to Al Qaeda operatives. The US PATRIOT Act,
therefore, has an important role in our nation's ability to prevent and
punish those who seek to harm us. But just as essential, and just as
fundamental, is the responsibility and obligation of the United States
to protect persecuted refugees and legitimate asylum seekers who have
fled terror in their homelands for the safety of our shores.
The barring of asylum to refugees under INA § 212(a)(3)(B) has
devastating implications for the most brutally oppressed and intensely
vulnerable ethnic and religious minorities in the world. In conjunction
with Section 805 of the Patriot Act and Section 103 of the REAL ID Act,
the proliferation of this bar by the Department of Homeland Security and
other government agencies against legitimate refugees and asylum seekers
is both abhorrent and anathema to U.S. jurisprudence, tradition, and our
treaty obligations. Persecuted ethnic and/or religious minorities who
stand together against brutal tyranny, systematic torture, rape, and
other atrocities must not be labeled terrorists, and those who resist
their oppressors must not be barred from seeking asylum.
The United States was founded by individuals who held dear the God-given
natural rights to self-defense and to resist and rise out of tyranny.
Never let it be said that we now cast away refugees who have embraced
our values and who share in our struggle.
 The USA PATRIOT Act, Pub. Law 107-56, October 26, 2001.
 The REAL ID Act of 2005, Pub. Law 109-13, May 15, 2005,
119 Stat. 303-323.
 The Antiterrorism and Effective Death Penalty Act of
1996, Pub. Law 104-132, April 24, 1996.
 Humanitarian Law Project, et al. v. Ashcroft, 309 F.
Supp.2d 1185, 1200 (C.D. Cal. 2004).
 The Intelligence Reform and Terrorism Prevention Act of
2004, Pub. Law 108-458, December 17, 2004.
 For more details concerning recent treatment of asylum
seekers in the United States, see the United States Commission on
International Religious Freedom (USCIRF): "Asylum Seekers in Expedited
Removal," February 2005, available online at:
 Letter of Thomas Jefferson to William Johnson, June 12,
 Debates and Proceedings in the Convention of the
Commonwealth of Massachusetts, at 6-87 (Peirce & Hale, eds.,
Boston, 1850. 2, col. 2.
 The Federalist, No. 46
 Letter of Fisher Ames to F.R. Minoe, June 12, 1789.
 Fisher Ames, A Journal of the Times (Boston,
 Samuel Adams, The Rights of Colonists, November 20,
 Wilson v. State, 33 Ark. 557, at 560, 34 Am. Rep.
52, at 54 (1878).
 Federalist # 28.
 Letter by Albert Gallatin to Alexander Addison, Oct.
7, 1789, MS. in N.Y. Hist. Soc. _A.G. Papers, 2.
 Letter of Tench Coxe to James Madison during
adoption of the Bill of Rights in the United States Congress, (1789).
 Within Mason's declaration of "the essential and
unalienable Rights of the People," -- drafted by Thomas Jefferson, George
Mason and others, and later adopted by the Virginia ratification
 Letter to John Cartwright, 1824. (The Writings of
Thomas Jefferson, Memorial Edition), Lipscomb and Bergh, editors, 20
Vols., Washington, D.C., 1903-04, 16:45.
 Richard Henry Lee, Letters from the Federal Farmer
 Justinian: Digest of Roman Law, 529 A.D.
 William Blackstone, Commentaries on the Laws of
 Charles L. Cantrell, The Right to Bear Arms: A
Reply, 53 Wis. B. Bull. 21-26 (Oct. 1980).
 Michael Foster, Crown Cases 273-74 (London 1776).
Cases of justifiable self-defense include "[w]here a known felony is
attempted upon the person, be it to rob or murder..., [a] woman in
defence of her chastity..., [and] arson or burglary in the habitation."
Id. at 274.
 Cesare Beccaria, On Crimes and Punishment, Chapter
XL: False Ideas of Utility; 1764.
 Senator Daniel Webster, remarks in the Senate, June 3,
1834. The Writings and Speeches of Daniel Webster, vol. 7, p. 47 (1903).
 1 Schwartz, The Bill of Rights: A Documentary
History, 319, 324 (1971).
 George Mason, from debates during the Constitutional
convention, quoted in 3 J. Elliot, Debates in the Several State
Conventions 45, 2d Ed. Philadelphia, 1836.
 Patrick Henry, 3 J. Elliot, Debates in the Several
State Conventions 45, 2d Ed. Philadelphia, 1836.
 Tench Coxe, Federal Gazette, June 18, 1789.
 Mahatma Gandhi, Autobiography. Translated from the
Gujarati by Mahadev Desai. Public Affairs Press, Washington, D.C. 1948.
 Elbridge Gerry, of Massachusetts, Debate, U.S. House of Representatives, August 17, 1789.
 Patrick Henry, from debates during the Constitutional
convention, quoted in Elliot's Debates, 1836 (later quoted with approval
by George Washington).
 Patrick Henry, "The War Inevitable" speech to the
Virginia assembly, March, 1775.
 Thomas Jefferson, quoting from On Crimes and
Punishment (1764), by Enlightenment philosopher Cesare Beccaria.
Jefferson translated Beccaria's work and copied into his Commonplace
Book of great quotations.
 USDOS: Country Reports on Human Rights Practices
2004: Burma February 28, 2005.
 USCIRF: Annual Report on Religious Freedom: Burma
(May 2004), at pg. 27.
 USDOS: Country Reports on Human Rights Practices
2004: Burma February 28, 2005.
 Thomas Jefferson: Letter to William S. Smith,
Paris, Nov. 13, 1787.
 Noah Webster, An Examination of the Leading
Principles of the Federal Constitution, October 17, 1787.
 Alexander Hamilton, The Federalist, No. 29.
 Thomas Paine, Thoughts On Defensive War, 1775.
 John Adams, A Defense of the Constitutions of the
Government of the United States of America, 1788.
 Joseph Story, Commentaries on the Constitution 3:§§
 Joseph Story, A Familiar Exposition of the
Constitution of the United States, § 450, at 264 (1840).
 Alabama: That the great, general and essential
principles of liberty and free government may be recognized and
established, we declare.... That every citizen has a right to bear arms
in defense of himself and the state. (Art. I, § 26); Alaska: 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.
(Art. I, § 19); Arizona: The right of the individual citizen to bear
arms in defense of himself or the State shall not be impaired, but
nothing in this section shall be construed as authorizing individuals or
corporations to organize, maintain or employ an armed body of men.
(Art. II, § 26); Arkansas: The citizens of this State shall have the
right to keep and bear arms for their common defense. (Art. II, § 5);
Colorado: The right of no person to keep and bear arms in defense of
his home, person and property, or in aid of the civil power when thereto
legally summoned, shall be called in question; but nothing herein
contained shall be construed to justify the practice of carrying
concealed weapons. (Art. II, § 13); Connecticut: Every citizen has a
right to bear arms in defense of himself and the state. (Art. I, § 15);
Delaware: A person has the right to keep and bear arms for the
defense of self, family, home and State, and for hunting and
recreational use. (Art. I, § 20)
Florida: The right of the people to keep and bear arms in defense of
themselves and of the lawful authority of the state shall not be
infringed, except that the manner of bearing arms may be regulated by
law. (Art. I, § 8, [a]); Georgia: The right of the people to keep
and bear arms shall not be infringed, but the General Assembly shall
have the power to prescribe the manner in which arms may be borne.
(1982 Constitution, Art. I, § 1, para. 8); Hawaii: 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. (Art. I, §
15); Idaho: The people have the right to keep and bear arms, which
right shall not be abridged; but this provision shall not prevent the
passage of laws to govern the carrying of weapons concealed on the
person nor prevent passage of legislation providing minimum sentences
for crimes committed while in possession of a firearm, nor prevent
passage of legislation providing penalties for the possession of
firearms by a convicted felon, nor prevent the passage of legislation
punishing the use of a firearm. No law shall impose licensure,
registration or special taxation on the ownership or possession of
firearms or ammunition. Nor shall any law permit the confiscation of
firearms, except those actually used in the commission of a felony.
(Art. I, § 11)
Illinois: Subject only to the police power, the right of the
individual citizen to keep and bear arms shall not be infringed. (Art.
I, § 22); Indiana: The people shall have a right to bear arms, for
the defense of themselves and the State. (Art. I, § 32); Kansas: The
people have the right to bear arms for their defense and security; but
standing armies, in time of peace, are dangerous to liberty, and shall
not be tolerated, and the military shall be in strict subordination to
the civil power. (Bill of Rights, § 4); Kentucky: All men are, by
nature, free and equal, and have certain inherent and inalienable
rights, among which may be reckoned:... Seventh: The right to bear arms
in defense of themselves and of the state, subject to the power of the
general assembly to enact laws to prevent persons from carrying
concealed weapons. (Bill of Rights, § 1, para. 7); Louisiana: The
right of each citizen to keep and bear arms shall not be abridged, but
this provision shall not prevent the passage of laws to prohibit the
carrying of weapons concealed on the person. (Art. I, § 11); Maine:
Every person has a right to keep and bear arms and this right shall
never be questioned. (Art. I, § 16); Massachusetts: The people have
a right to keep and bear arms for the common defence. And as, in time of
peace, armies are dangerous to liberty, they ought not to be maintained
without the consent of the legislature; and the military power shall
always be held in an exact subordination to the civil authority, and be
governed by it. (Part I, Art. XVII); Michigan: Every person has a
right to keep or bear arms for the defense of himself and the State.
(Art. I, § 6); Mississippi: The right of every citizen to keep and
bear arms in defense of his home, person, or property, or in aid of the
civil power when thereto legally summoned, shall not be called in
question, but the legislature may regulate or forbid carrying concealed
weapons. (Art. III, § 12); Missouri: That the right of every citizen
to keep and bear arms in defense of his home, person, and property, or
when lawfully summoned in aid of the civil power, shall not be
questioned; but this shall not justify the wearing of concealed weapons.
(Art. I, § 23); Montana: The right of any person to keep or bear
arms in defense of his own home, person, and property, or in aid of the
civil power when thereto legally summoned, shall not be called in
question; but nothing herein contained shall be held to permit the
carrying of concealed weapons. (Art. II, § 12) "Militia forces shall
consist of all able-bodied citizens of the state except those excepted
by law. (Art. VI, § 14); Nebraska: All persons are by nature free
and independent, and have certain inherent and inalienable rights; among
these are life, liberty, the pursuit of happiness, and the right to keep
and bear arms for security or defense of self, family, home and others,
and for lawful common defense, hunting, recreational use and all other
lawful purposes, and such rights shall not be denied or infringed by the
state or any subdivision thereof. (Art. I, § 1)
Nevada: Every citizen has the right to keep and bear arms for security
and defense, for lawful hunting and recreational use and for other
lawful purposes. (Art. I, § 11, ); New Hampshire: All persons
have the right to keep and bear arms in defense of themselves, their
families, their property and the state. (Part I, Art. 2a) No person,
who is conscientiously scrupulous about the lawfulness of bearing arms,
shall be compelled thereto. (Part I, Art. 13); New Mexico: No law
shall abridge the right of the citizen to keep and bear arms for
security and defense, for lawful hunting and recreational use and for
other lawful purposes, but nothing herein shall be held to permit the
carrying of concealed weapons. No municipality or county shall regulate
in any way, an incident of the right to keep and bear arms. (Art. II, §
6); North Carolina: 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; and, as standing armies in time of peace are
dangerous to liberty, they shall not be maintained, and the military
shall be kept under strict subordination to, and governed by, the civil
power. Nothing herein shall justify the practice of carrying concealed
weapons, or prevent the General Assembly from enacting penal statutes
against that practice. (Art. I, § 30); North Dakota: All individuals
are by nature equally free and independent and have certain inalienable
rights, among which are those of enjoying and defending life and
liberty; acquiring, possessing and protecting property and reputation;
pursuing and obtaining safety and happiness; and to keep and bear arms
for the defense of their person, family, property, and the state, and
for lawful hunting, recreational and other lawful purposes, which shall
not be infringed. (Art. I, § 1); Ohio: The people have the right to
bear arms for their defense and security; but standing armies, in time
of peace, are dangerous to liberty, and shall not be kept up; and the
military shall be in strict subordination to the civil power. (Art. I,
§4); Oklahoma: The right of a citizen to keep and bear arms in
defense of his home, person or property, or in aid of the civil power,
when thereunto legally summoned, shall never be prohibited; but nothing
herein contained shall prevent the Legislature from regulating the
carrying of weapons. (Art. II, § 26); Oregon: The people shall have
the right to bear arms for the defence of themselves, and the State, but
the Military shall be kept in strict subordination to the civil power.
(Art. I, § 27); Pennsylvania: The right of the citizens to bear arms
in defence of themselves and the State shall not be questioned. (Art.
I, § 21); Rhode Island: The right of the people to keep and bear arms
shall not be infringed. (Art. I, § 22); South Carolina: 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. As, in
times of peace, armies are dangerous to liberty, they shall not be
maintained without the consent of the General Assembly. The military
power of the State shall always be held in subordination to the civil
authority and be governed by it. No soldier shall in time of peace be
quartered in any house without the consent of the owner nor in time of
war but in the manner prescribed by law. (Art. I, § 20); South
Dakota: The right of the citizens to bear arms in defense of themselves
and the state shall not be denied. (Art. VI, §24)
Tennessee: That the citizens of this State have a right to keep and
bear arms for their common defense; but the Legislature shall have
power, by law, to regulate the wearing of arms with a view to prevent
crime. (Art. I, § 26); Texas: Every citizen shall have the right to
keep and bear arms in lawful defense of himself or the State; but the
Legislature shall have power, by law, to regulate the wearing of arms,
with a view to prevent crime. (Art. I, § 23 ) Note: The Texas
Declaration of Independence stated that "[The Mexican government] has
demanded us to deliver up our arms, which are essential to our defense
-- the rightful property of freemen -- and formidable only to tyrannical
governments"; Utah: The individual right of the people to keep and
bear arms for security and defense of self, family, others, property, or
the state as well as for other lawful purposes shall not be infringed;
but nothing herein shall prevent the legislature from defining the
lawful use of arms. (Art. I, § 6); Vermont: That the people have a
right to bear arms for the defence of themselves and the State -- and as
standing armies in time of peace are dangerous to liberty, they ought
not to be kept up; and that the military should be kept under strict
subordination to and governed by the civil power. (Chapter I, Art. 16);
Virginia: That a well regulated militia, composed of the body of the
people, trained to arms, is the proper, natural and safe defense of a
free state, therefore, the right of the people to keep and bear arms
shall not be infringed; that standing armies, in time of peace, should
be avoided as dangerous to liberty; and that in all cases the military
should be under strict subordination to, and governed by, the civil
power. (Art. I, § 13); Washington: The right of the individual
citizen to bear arms in defense of himself, or the state, shall not be
impaired, but nothing in this section shall be construed as authorizing
individuals or corporations to organize, maintain or employ an armed
body of men. (Art. I, § 24); West Virginia: A person has the right
to keep and bear arms for the defense of self, family, home, and state,
and for lawful hunting and recreational use. (Art. 3, § 22);
Wisconsin: The people have the right to keep and bear arms for
security, defense, hunting, recreation, or any other lawful purpose.
(Art. 1, § 25) Note: This provision was approved by Wisconsin voters
in Nov. 1998 by a 3:1 margin.; Wyoming: The right of the citizens to
bear arms in defense of themselves and of the state shall not be
denied. (Art. I, § 24). Notes: California, Iowa, Maryland,
Minnesota, New Jersey, and New York do not have "right to keep and bear
arms" amendments in their state constitutions. Iowa's constitution
(Art. I, § 1) states: All men are, by nature, free and equal, and have
certain inalienable rights -- among which are those of enjoying and
defending life and liberty, acquiring, possessing and protecting
property, and pursuing and obtaining safety and happiness. New
Jersey's (Art. I, § 1) states: All persons are by nature free and
independent, and have certain natural and unalienable rights, among
which are those of enjoying and defending life and liberty, of
acquiring, possessing, and protecting property, and of pursuing and
obtaining safety, and happiness. Reference: These summaries have
been taken from NRA-ILA fact sheet at
 No United States national interest is served by such a
bar. No threat to U.S. foreign policy is served by such a bar. The
recent re-negotiation between members of the U.S. Senate and members the
U.S. House of Representatives of the final text of the REAL ID Act as
well as the final committee report language reveal the intent of
Congress to preserve asylum in the United States as a viable benefit to
legitimate refugee seekers such as the Respondent and balance this
protection with the concern to prevent terrorists from gaining entrance
to our nation.
 White House Press Release, "DHS Grants Asylum to Iraqi
Who Aided Jessica Lynch Rescue," April 29, 2003. Available at
 DHS News Release, "*Asylum Granted to Iraqi Who Aided
Jessica Lynch Rescue," April 29, 2003. Available at