Bill of Rights protections for all — or maybe just for some: Are non-citizens protected?

Background

In contrast with the Fifth and Sixth Amendments’ use of the words “person” and “accused,” the First, Second and Fourth Amendments’ text protects certain rights of “the people.” The Fifth and Sixth Amendments prescribe certain rights of individuals in criminal proceedings, while the First, Second, and Fourth provide rights to the public at large. This distinction affects who is protected by these amendments.

Who are “the people” protected by the First, Second and Fourth Amendments? An obvious starting point would be citizens of the United States. But what about permanent resident aliens and refugees residing in the US? What about aliens living in the US without a legal immigration status? Those on a temporary stay visa? Or other classes that may attempt to claim the right? The Supreme Court purported to answer these questions in United States v. Verdugo-Urquidez (1990). It held that the use of “people” in the Fourth Amendment, as well as in the First and Second Amendments, refers to “a class of persons who are part of a national community or who have otherwise developed sufficient connection with [the United States] to be considered part of that community.” The problem then is determining who is part of this national community. Who is considered to have sufficient connection with the United States such that their rights are protected by the First, Second, and Fourth Amendments?

Issue

The Supreme Court has not further clarified who falls under the umbrella of “the people,” and whether the class of “people” is the same in the First, Second and Fourth Amendments. The Court, instead, has left it to lower courts to wrestle with what determines if an individual is part of the class for asserting a constitutional right.  As a result, a difficult question courts have grappled with is whether aliens unlawfully residing in the United States are part of “the people.” With over twelve million such aliens currently residing in the United States, there is a need for a definite answer on what constitutional protections they possess. The Supreme Court in Verdugo-Urquidez declined to decide this issue because “such a claim [was not] squarely before” it. The Court did, however, suggest that an alien who is in the United States voluntarily and has accepted “some societal obligations” may be considered part of “the people.”

The Split

There is a split between the Fifth and the Seventh Circuit on the issue in relation to the Second Amendment. The Fifth Circuit Court of Appeals in United-States v. Portillo-Munoz (2011) held that an alien unlawfully residing in the United States is not a member of “the people” and therefore not given the Second Amendment right to bear arms. Armando Portillo-Munoz had acquired a gun to protect his employer’s chickens from coyotes.  He had been voluntarily present, although unlawfully, in the United States. He was working a steady job, paying rent for his home, and financially supporting his girlfriend and daughter. Yet, the court denied him protection under the Second Amendment and emphasized a distinction between aliens in the United States lawfully and those in the United States unlawfully, even those with substantial connections to the United States. The Eight Circuit in United States v. Flores (2011) and the Fourth Circuit in United States v. Carpio-Leon (2012) have taken the same approach.

The dissent in Portillo-Munoz worried about the implications of the majority’s holding not just for the Second Amendment, but for the First and Fourth Amendments as well. The dissent argued that:

There are countless persons throughout Texas, Louisiana, and Mississippi, who, like Portillo-Munoz, work for employers, pay rent to landlords, and support their loved ones, but are unlawfully residing in the United States. The majority’s reasoning renders them vulnerable — to governmental intrusions on their homes and persons, as well as interference with their rights to assemble and petition the government for redress of grievances — with no recourse.

The Seventh Circuit’s decision came in United States v. Meza-Rodriguez (2015). Mariano Meza-Rodriguez was brought to the United States as a young child and had been residing unlawfully in the country since that time. The court held that an alien unlawfully residing in the United States had the Second Amendment right to bear arms. It emphasized Meza-Rodriguez’s plainly substantial connections to the United States having lived in the country for several years. Despite its holding on this issue, the court upheld a statute prohibiting aliens such as Meza-Rodriguez from possessing firearms and ammunitions because “the right to bear arms is not unlimited” and the ban on the possession of firearms by such aliens “is substantially related to the statute’s general objectives.” Ultimately, the Seventh Circuits disagreement with the Fifth Circuit was not essential to the holding of the case.

While there is not much consideration on the issue with regard to the First Amendment, several circuits have provided Fourth Amendment protections to aliens unlawfully residing in the United States and none have definitively denied the protection. The Fifth Circuit opined in Martinez-Aguero v. Gonzalez (2006) that “cases from [the Fifth Circuit] state unequivocally that aliens are entitled to Fourth Amendment protection.” More recently, during immigration proceedings against a putative alien, the Ninth Circuit stated that in such proceedings it allows for the “suppression of any evidence seized in connection with a Fourth Amendment violation that is egregious.” Armas-Barranzuela v. Holder (9th Cir. 2014). The First Circuit follows a similar approach. Garcia-Aguilar v. Lynch (1st Cir. 2015).

Looking Forward

It is difficult to say when there will be an end to the Supreme Court’s exercise in constitutional avoidance on the issue. In Hernandez v. Mesa (2017), the Court declined to address the related issue of whether a Mexican national shot at the border of the United States and Mexico could claim Fourth Amendment rights because “it is sensitive and may have consequences that are far reaching.” Something to keep an eye on is congressional action on immigration and the potential impact on the status of aliens unlawfully residing in the United States as part of “the people.” However, the legislative landscape is even more fraught with uncertainty than the judicial landscape.

Further Reading:

Mathilda McGee-Tubb, Sometimes You’re in, Sometimes You’re out: Undocumented Immigrants and the Fifth Circuit’s Definition of “The People” in United States v. Portillo-Muñoz, 53 B.C.L. Rev. E. Supp. 75 (2012), http://lawdigitalcommons.bc.edu/bclr/vol53/iss6/7

Liberty, Justice, and Handguns for All (in Washington): The D.C. Circuit Weighs In On Concealed Carry

Issue

Is the right to publicly carry a concealed weapon a “core” right protected by the Second Amendment? Gun rights activists throughout the District can celebrate, because the D.C. Circuit said yes. The court struck down the section of the D.C. Code that primarily limited concealed carry licenses to “those showing a good reason to fear injury to [their] person or property.”

The Evolution of Gun Laws in the District of Columbia

Over the last 40 years, the D.C. Council has attempted to establish gun restrictions on three separate occasions.

The first attempt – a complete ban on handgun possession – was struck down by the Supreme Court in District of Columbia v. Heller. In Heller, Justice Scalia analyzed the meaning of the words “keep and bear arms,” and noted that “the inherent right of self-defense has been central to the Second Amendment right.” Justice Scalia (quoting the D.C. Circuit in Parker v. District of Columbia) noted that “banning from the home the most preferred firearm in the nation to ‘keep’ and use for the protection of one’s home and family would fail constitutional muster.” Following Heller, most jurisdictions adopted the holding that the core right protected by the Second Amendment was the right for persons to keep firearms at home.

The Council’s second attempt – which allowed DC residents to possess handguns in their homes, but instituted a total ban on public carrying – was struck down by the U.S. District Court for the District of Columbia in Palmer v. District of Columbia. In Palmer, the court held that a blanket ban on carrying handguns in public was unconstitutional, but some restrictions on carrying handguns in public could be permitted.

The third attempt maintained a ban on publicly carrying a handgun, except for persons who could demonstrate a “good reason” to carry. This “good reason” statute was struck down by the D.C. Circuit in Wrenn v. District of Columbia. In Wrenn, the court noted that the “good reason” statute was effectively the same as a “total ban” for most citizens.

To meet the requirements of the “good reason” statute, applicants for a concealed carry permit would need to “show a special need for self-protection distinguishable from the general community.” The court found the phrase “distinguishable from the general community” problematic. The language of the statute barred most people from obtaining a license to carry, because only a small portion of the D.C. metropolitan community could distinguish their needs “from the general community.” Before Wrenn, the Washington Metropolitan Police Department rejected 77 percent of concealed carry permit applications for failure to show a special need for self-protection.

Taking into consideration the textual and historical analysis in Heller, the court held

“…the individual right to carry common firearms beyond the home for self-defense—even in densely populated areas, even for those lacking special self-defense needs—falls within the core of the Second Amendment protections.”

With this language, the D.C. Circuit became the latest circuit to join the split over whether carrying beyond the walls of the home is a “core” right protected by the Second Amendment. This may result in greater scrutiny of the “good reason” statutes in other circuits.

The Split

The D.C. Circuit joins the Seventh Circuit in holding that a ban on public carrying violates the Second Amendment. In Moore v. Madigan, the Seventh Circuit struck down the Illinois Unlawful Use of Weapons statute. While somewhat distinct from a “good reason statute,” the statute was effectively a total ban on public carrying, with very narrow exceptions for law enforcement officers, hunters, and members of target shooting clubs (among others). The court held that “confrontation [requiring self-defense with a gun] is not limited to the home.”

The First, Second, Fourth, and Ninth Circuits disagree (for a comprehensive overview of the decisions below, check out another one of our Sunday Splits blogs).

  • In Hightower v. City of Boston, the First Circuit held that the government “may regulate the carrying of concealed weapons outside the home” and upheld Boston’s “good reason” statute.
  • In Kachalsky v. County of Westchester, the Second Circuit declined to extend the reasoning in Heller to carrying outside the home. The court upheld New York’s “good reason” statute, which required applicants seeking to obtain a concealed handgun permit, to “demonstrate a special need for protection.”
  • In Woollard v. Gallagher, the Fourth Circuit held that a “good-and-substantial-reason” requirement could withstand constitutional muster, and upheld Maryland’s “good reason” statute.
  • In Peruta v. County of San Diego, the Ninth Circuit explicitly stated that “there is no Second Amendment right for members of the public to carry concealed firearms in public.”

The D.C Circuit’s decision casts a sharp split on the issue of whether concealed carrying in public is a core right protected by the Second Amendment. The decision struck down the very kind of statute –a “good reason” statute – that has been consistently upheld in sister circuits.

Looking Forward – The Future of Concealed Carry

The D.C. Circuit’s order went into effect on October 7, and residents of Washington, D.C. who pass a background check and a firearms safety test will be permitted to carry a concealed handgun. Some restrictions on concealed carry remain, including prohibitions on carrying firearms into federal buildings or around monuments.

Following the D.C. Circuit’s decision, “good reason” statutes could be challenged in other circuits and present an opportunity for the Supreme Court to rule on this issue. In particular, the D.C. Circuit’s qualification that handguns can be carried “even in densely populated areas” could lead to the arguably strict “good reason” statues being challenged in major cities, such as New York and Boston.

The Supreme Court declined to review the decision in Woollard, and D.C. officials stated that they would not petition the Supreme Court to review the decision in Wrenn shortly before the D.C. Circuit’s order went into effect. But in light of current events, stark administrative changes, and the D.C. Circuit’s decision, the time may be ripe for the Supreme Court to revisit “good reason” statutes and explicitly state whether the core of the Second Amendment protects the right to publicly carry a concealed firearm.

Keep Calm and Carry On: The Trump Administration, the New High Court, and the Second Amendment

To say the first few weeks of the Donald J. Trump presidency has been eventful would be an understatement. Indeed, some may go as far to use adjectives such as chaotic, disorganized, and downright frightening.

The administration has been busy combating wide-ranging issues (and controversies) regarding the President’s hastily put together executive order banning refuges and immigrants from predominately Muslim nations, the confirmation of Betsy DeVos, Senator Jeff Sessions, as well as the various ethical conundrums he and his family have placed themselves in.

Trump and the Second Amendment

One issue that seems to have been overlooked is a statement issued by the President shortly after he was inaugurated.  Appearing under the headline “Standing Up For Our Law Enforcement Community” the President issued a statement on the White House’s official webpage, asserting that “supporting law enforcement means supporting our citizens’ ability to protect themselves. We will uphold Americans’ Second Amendment rights at every level of our judicial system.” President Trump’s statement came after months of pro-Second Amendment rhetoric by then-candidate Trump. Though the political climate in Washington has not been focused on major gun issues since Trump took office, the recent nomination of federal appellate judge Neil Gorsuch may potentially bring the Second Amendment back into the national spotlight.

Gorsuch and the Second Amendment

Judge Gorsuch is a Coloradan with a love of the outdoors, a trait he shared with the late Justice Scalia. Gun-rights groups praised the selection, believing Gorsuch to be a fierce protector of the Second Amendment.

A love of the outdoors is not the only passion Judge Gorsuch shared with Justice Scalia. According to commentators, the two jurists share not only a flair for writing vivid opinions, but a similar philosophy regarding constitutional interpretation. In fact, Judge Gorsuch’s commitment to originalism could make his nomination to the High Court all the more significant considering the current circuit split within the federal judiciary regarding whether an individual possesses a constitutional right to carry a firearm outside of the home.

In 2008 and 2010, the Supreme Court decided District of Columbia. v. Heller, and McDonald v. Chicago, respectively. In Heller, in an opinion written by Justice Scalia, the Court held the Second Amendment guarantees an individual’s right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home. Two years later, in McDonald,  the Court incorporated the Second Amendment against the States via the Fourteenth Amendment. These decisions resulted in several cases being filed across the country testing the limits of the Amendment. The results have left a definite Circuit split regarding whether an individual possesses a right to carry a firearm outside the home, and specifically, whether “may issue” licensing schemes are unconstitutional.

Background on the Second Amendment

The text of the Second Amendment to the Constitution states: “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.”

Early judicial decisions by the Supreme Court construed the Amendment narrowly. In United States v. Cruikshank, the Court ruled that, “the right to bear arms is not granted by the Constitution; neither is it in any manner dependent upon that instrument for its existence.” The Court added that the Second Amendment is limited only to restrict the powers of the national government. The Court’s limited reading of the Second Amendment would continue well into the Twentieth-Century.

In United States v. Miller (1939), two defendants filed a demurrer, challenging the relevant section of the National Firearms Act as an unconstitutional violation of the Second Amendment. Writing for the Court, Justice McReynolds held that the shot-gun regulations proscribed by the National Firearms Act and the illegal interstate transportation of it was in no-way connected to the defendants’ service in a militia:

In the absence of any evidence tending to show that possession or use of a “shotgun having a barrel of less than eighteen inches in length” at this time has some reasonable relationship to the preservation or efficiency of a well-regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment, or that its use could contribute to the common defense.

However, in the pivotal case District of Columbia v. Heller, the Court held that the Second Amendment guarantees an individual’s right to possess a firearm unconnected with service in a militia, and to use that firearm for traditionally lawful purpose, such as self-defense within one’s own home, as respondent Dick Heller, sought to do. Justice Scalia devoted a significant portion of his opinion to analyzing the linguistic nature of the operative clauses, “right of the People” and “keep and bear arms.” Justice Scalia concluded that all the textual elements as well as the historical background of the amendment guarantee the individual right to possess and carry weapons “in case of confrontation.” He added that like the First and Fourth Amendments, the Second Amendments codified a pre-existing right.”

The Split: A Shootout within the Circuit Courts

Heller and McDonald, while constitutionally important cases, only determine half the issue. While the Supreme Court has vindicated the right to possess a firearm for the purpose of self-defense in the home, the Court has yet to declare a concomitant right outside of the home.

The Second Circuit

Shortly after the decision in McDonald, two New York plaintiffs as well as the Second Amendment Foundation, sought injunctive relief in the Southern District of New York, White Plains division.

The plaintiffs originally sought an injunction barring the handgun licensing authority from enforcing a New York law requiring handgun carry permit applicants to demonstrate “proper cause” for the issuance of concealed carry permits. The case was a direct challenge to New York’s “may-issue” system of concealed carry firearm licensing.  The defendants filed a motion to dismiss, which was denied by the court, and set a hearing to hear plaintiffs’ motion for summary judgment. On September 2nd, 2011, the court denied the motion, and simultaneously granted the defendant’s cross-motion for summary judgment in their favor.

The court, in applying intermediate scrutiny, found that the “good cause” requirement promotes and is substantially related to the government’s strong interest in public safety and crime prevention. On appeal, the Second Circuit, in Kachalsky v. County of Westchester affirmed the lower court opinion on similar grounds. Furthermore, the court noted that restrictions on firearms in New York law predate the ratification of the Constitution.

After losing at the Second Circuit, the appellants filed a petition for certiorari with the United States Supreme Court. However, certiorari was denied, as expected by some legal observers. It has been suggested that the Court will eventually hear a case like it, as the Circuit Courts are divided in their opinions on the issue of public handgun carry permit policies.

The First, Fourth, and Ninth: Sisters-in-Arms with the Second

Woollard v. Gallagher was initially decided in favor of the plaintiff seeking to renew a concealed carry permit in Maryland. The Fourth Circuit Court of Appeals decided the case along the same lines of reasoning as the Second Circuit in Kachalsky. Both the First and Ninth Circuits have similarly declined to expand the Second Amendment to include a right to possess a firearm outside of the home, with the Ninth Circuit in Peruta v. San Diego concluding that “Second Amendment right to keep and bear arms does not include, in any degree, right of member of general public to carry concealed firearms in public.”

The Smoking Barrel: Posner Resurrects the “outside the home” Theory

However, in the Seventh Circuit, the court ruled in Moore v. Madigan that Illinois’s no-issue permit policy was unconstitutional. Judge Posner wrote that while both Heller and McDonald noted that the “the need for defense of self, family, and property is most acute” in the home, that does not mean that it is not acute outside the home.

Specifically, Jude Posner focused Scalia’s framing in Heller of the Second Amendment as granting one a right to carry or possess a firearm in times of confrontation.

“[C]onfrontation is not limited to the home . . . one doesn’t have to be a historian to realize that a right to keep and bear arms for personal self-defense in the eighteenth century could not rationally have been limited to the home.”

The Seventh Circuit concluded that Illinois would need to demonstrate to the Court more than a rational basis for believing that its ban is justified by an increase in the public safety.

Looking Forward

The circuit split, while not being wide spread, could find itself extremely relevant considering the current political climate surrounding the Trump administration and the nomination of Judge Neil Gorsuch to the Supreme Court.

If confirmed, Gorsuch would be the necessary conservative vote to expand the Second Amendment’s protection to gun-owners looking to carry their firearm outside the home. Such a decision, while being celebrated by libertarians and gun-rights advocates, could have enormous and far reaching consequences in a wide variety of contexts, not limited to tort and product liability law, public safety, and policing.

Likely, even if the Court would announce such a right, it would hardly be the end of litigation attempting to fine tune and clarify the expanse of the Second Amendment. An avalanche of litigation within state and federal courts could consume the judiciary for years to come. Complicating the split is the fact that, while the weight of the circuit split falls in favor of a narrower reading of the Second Amendment, the courts that decided those cases largely sit within judicial circuits that have a more urban population. Courts that may agree with the Seventh Circuit may not even face the issue, as the relevant jurisdictions allow some form of concealed carry.

Nevertheless, the Court should hear the issue: Second Amendment rights are not second-order rights, and citizens (and legislatures) across the country deserve a clear statement of the law.