Avi Sholkoff | The Second Amendment & Undocumented Immigrants
INTRODUCTION
In District of Columbia v. Heller, the Supreme Court ruled the Second Amendment confers an individual right to keep and bear arms to law-abiding, responsible citizens and “members of the political community” District of Columbia v. Heller, 128 S. Ct. 2783, 2790 (2008). In McDonald v. City of Chicago, the Court held the individual weapon-owning right to be a fundamental right incorporated against the states by the Fourteenth Amendment’s Due Process Clause. McDonald v. City of Chi., 130 S. Ct. 48 (2009).
More recently, many of the U.S. Circuit Courts of Appeal have examined precisely who can be considered a law-abiding citizen and members of the political community in this context. These cases have examined the constitutionality of 18 U.S.C. § 992(g), a provision of the amended Gun Control Act of 1968 that prohibits the sale or possession of firearms to nine categories of individuals, including undocumented immigrants. Specifically, these cases have questioned whether the Second Amendment and the right to bear arms apply to undocumented immigrants, thereby making § 992(g) unconstitutional.
THE ISSUE
Does the Second Amendment extend to undocumented immigrants?
THE SPLIT
Some circuit courts—namely the Fourth, Fifth, and Eighth—have held the Second Amendment does not extend to undocumented immigrants. Others—including the Second, Ninth, and Tenth—have assumed without deciding that it may apply. Separately, the Seventh Circuit held it does not necessarily exclude undocumented individuals.
The Fifth Circuit
In 2011, the Fifth Circuit became the first court to examine this issue. The case involved Armando Portillo-Munoz, who entered the United States illegally in 2009. In 2010, a police officer stopped him while driving and found a handgun in the storage compartment in the front seat of his car. The police officer arrested Portillo-Munoz, charging him under §922(g)(5). Portillo-Munoz appealed his prison sentence from the district court.
In United States v. Portillo-Munoz, the court found that the Supreme Court in Heller excluded undocumented immigrants from being considered law-abiding members of the political community. Thus, they could not claim Second Amendment protection. Specifically, the divided court held that “Whatever else the term means or includes, the phrase "the people" in the Second Amendment of the Constitution does not include [undocumented immigrants]* in the United States such as Portillo-Munoz, and we hold that section 922(g)(5) is constitutional under the Second Amendment.” United States v. Portillo-Munoz, 643 F.3d 437, 442 (5th Cir. 2011)
(*The author, with editorial approval, has chosen to substitute the term “undocumented immigrant(s)” in quotations that use the term “alien," ”illegal alien," or other related terms.)The Fourth Circuit
The following year, the Fourth Circuit considered the issue. Defendant and undocumented immigrant Nicolas Carpio-Leon was indicted for possessing firearms. Carpio-Leon argued that § 922(g)(5) would be unconstitutional under the Second Amendment.
On appeal from the District Court, the Fourth Circuit, in U.S. v. Carpio-Leon, found that the Second Amendment does not protect undocumented immigrants. It held—similarly to the Fifth Circuit—that undocumented immigrants do not belong to the class of law-abiding members of the political community. United States v. Carpio-Leon, 701 F.3d 974, 979 (4th Cir. 2012). Carpio-Leon also challenged that § 922(g)(5) had violated his right under the Fifth Amendment’s Due Process clause. The court rejected this claim as well. It concluded that “prohibiting [undocumented immigrants]*, as a class, from possessing firearms is rationally related to Congress' legitimate interest in public safety.” Carpio-Leon, F.3d at 975.
(*The author, with editorial approval, has chosen to substitute the term “undocumented immigrant(s)” in quotations that use the terms “alien," ”illegal alien," or other related terms.)The Seventh Circuit
In 2015, the Seventh Circuit offered an alternative interpretation to the issue. That case involved Mariano Meza-Rodriguez, who arrived in the United States with his family as a young child. On August 24, 2013, Milwaukee police officers found Meza-Rodriguez at a bar with a .22 caliber cartridge in his pocket. The government alleged in United States v. Meza-Rodriguez that the defendant had violated § 922(g)(5). It also argued that unauthorized non-citizens have not accepted the essential obligations of membership in U.S. society and thus cannot be considered part of “the people.”
However, the Seventh Circuit offered a slight shift from previous case law. The Court noted the district court denied Meza-Rodriguez’s case on the grounds the Second Amendment does not protect undocumented immigrants. It characterized this reasoning as having “swept too far” and declined to endorse it. United States v. Meza-Rodriguez, 798 F.3d 664, 666 (7th Cir. 2015). However, the Court held that § 922(g)(5) was a “permissible restriction” of the Second Amendment. The court reasoned, "Persons with a strong incentive to use false identification papers will be more difficult to keep tabs on than the general population.” Meza-Rodriguez, 798 F.3d at 673.
Still, Judge Diane P. Wood, writing for the Court, suggested that “we see no principled way to carve out the Second Amendment and say that the unauthorized (or maybe all non-citizens) are excluded. No language in the Amendment supports such a conclusion.” 798 F.3d at 673.
The Second, Ninth, and Tenth Circuits
The Tenth Circuit declined to rule on the “Constitutional Question” of whether undocumented immigrants can have the right to bear arms under the Second Amendment. United States v. Huitron-Guizar, 678 F.3d 1164, 1169 (10th Cir. 2012).
Nearly a decade later, the Ninth and Second Circuits took similar approaches. The court in the former stated that “the law precludes us from reaching a definite answer on whether [undocumented immigrants]* are included in the scope of the Second Amendment right.” United States v. Torres, 911 F.3d 1253, 1261 (9th Cir. 2019). The Ninth Circuit then explicitly assumed without deciding that undocumented immigrants fall within the scope of the Second Amendment, as highlighted by the Supreme Court’s decision in Heller. Torres, F.3d at 1257.
The Second Circuit also sought to avoid “introducing difficult questions” into its jurisprudence. In part, the court reasoned, because the issue of whether the Second Amendment applies to undocumented immigrants has divided other courts. United States v. Perez, 6 F.4th 448, 453 (2d Cir. 2021).
Ultimately, the three Circuit Courts held that § 922(g)(5) could be considered a permissible restriction when applied to the facts of each of the cases. Moreover, they reasoned that the government’s interests in controlling crime and ensuring public safety are promoted by ensuring undocumented immigrants do not obtain firearms. Huitron-Guizar, 678 F.3d at 1170; Torres, 911 F.3d at 1264; Perez, at 6 F.4th at 455.
In the Ninth, however, the court could “not conclude with certainty" whether undocumented immigrants can be considered part of “the people” to whom the Second Amendment protects. Torres, F.3d at 1264-65.
(*The author, with editorial approval, has chosen to substitute the term “undocumented immigrant(s)” in quotations that use the terms “alien," ”illegal alien," or other related terms.)The Eighth Circuit
The Eighth Circuit first engaged with this issue in United States v. Flores, 663 F.3d 1022 (2011). In a short, two-page opinion, it explicitly affirmed the holding in Portillo-Munoz.
This past April, In United States v. Sitladeen, the Eighth Circuit re-encountered the issue. The defendant, a Canadian, was speeding down the highway in Minnesota. After a police officer stopped his truck, the officer found sixty-seven guns and over a dozen high-capacity pistol magazines. Soon after Sitladeen’s arrest, the officer discovered he and his friend did not have permission to be in the United States — with Sitladeen the subject of a Canadian arrest warrant. Later, Sitladeen and his friend were found to have violated §922 (g)(5)(A). Sitladeen moved to dismiss, believing the law to be unconstitutional. The district court dismissed, and the defendant appealed.
The Eighth Circuit cited Heller and McDonald in noting that certain individuals in the United States have a right to bear arms. However, this recent case is notable as the Supreme Court decided N.Y. State Rifle & Pistol Ass’n v. Bruen after the initial briefing.
The Court requested a supplemental briefing to see if the Bruen case would impact its analysis, which it then subsequently revealed it did not. Under Bruen, the government must demonstrate that its regulation is consistent with the United States' “historical tradition” of gun regulation. Courts can only uphold the regulation where it has been found to be consistent with the “Nation’s historical tradition” of firearm regulation, and therefore falls outside the Second Amendment’s “unqualified command.” Bruen, 142 S. Ct. 2111, at 2126.
In Sitladeen, the Eighth Circuit held that “[undocumented immigrants]* are not within the class of persons to which the phrase “the people” refers. Sitladeen, 64 F.4th at 985. It adds that nothing in Bruen casts doubt on the court’s interpretation of this phrase. Id. at 985.
With regards to §922(g)(5)(A), it echoed the argument of other courts in finding that prohibiting unlawfully present immigrants from possessing firearms helps achieve the legitimate goal of public safety. Id. at 982.
(*The author, with editorial approval, has chosen to substitute the term “undocumented immigrant(s)” in quotations that use the terms “alien," ”illegal alien," or other related terms.)MOVING FORWARD
From examining these cases, it is perhaps time the Supreme Court examines the “constitutional question” many of the lower courts have avoided. It could be beneficial for the Supreme Court to clarify whether “the people” refers to undocumented immigrants in the Second Amendment as it does to the Fourth and First. See United States v. Verdugo-Urquidez, 494 U.S. 259, 110 S. Ct. 1056 (1990).
In the interim, the issue has received examination from state legislatures and the U.S. Senate. Earlier this year, Alabama Representative Rep. Ron Bolton introduced a bill that would make it a state crime for an undocumented immigrant in the country to possess a firearm. The U.S. Senate has also considered the issue. In 2021, a group of Republican Senators introduced the Illegal Alien NICS Alert Act. The bill would’ve required the National Instant Criminal Background Check System (NICS) to notify U.S. Immigration and Customs Enforcement (ICE) and relevant local law enforcement when a firearm transferee is illegally present in the United States.