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Federal statute prohibiting unauthorized aliens from possessing firearms doesn’t violate Second Amendment

United States v. Mariano A. Meza-Rodriguez, 7th Circuit Court of Appeals No. 14-3271, 8/20/15

While aliens who are in the United States without authorization may invoke the protections of the Second Amendment, 18 U.S.C. § 922(g)(5), which prohibits unauthorized aliens from possessing firearms, is a reasonable regulation of the right to bear arms. Thus, Meza-Rodriguez’s prosecution under the statute doesn’t violate the Second Amendment.

Meza-Rodriguez, an unauthorized alien, moved to dismiss the charge under § 922(g)(5) on the grounds the prosecution violated his Second Amendment right to bear arms. The district court denied the motion on the grounds that the Second Amendment doesn’t protect unauthorized aliens. The court of appeals says “[t]hat rationale swept too far, and we do not endorse it.” (Slip op. at 2). Instead, the court of appeals concludes that District of Columbia v. Heller, 554 U.S. 570 (2008), didn’t squarely address that question and in fact suggests that all people, citizens or not, are protected by the Second Amendment. (Slip op. at 7-9). In particular, Heller noted both the Second and Fourth Amendments refer to “the people,” and the Fourth Amendment has been extended to non-citizens “when they have come within the territory of the United States and developed substantial connections with this country,” United States v. Verdugo-Urquidez, 494 U.S. 259 (1990).

Meza-Rodriguez satisfies both those criteria. He has lived continuously in the United States for nearly all his life. During that time, his behavior left much to be desired, but … that does not mean that he lacks substantial connections with this country. Plyler [v. Doe, 457 U.S. 202 (1982)] shows that even unauthorized aliens enjoy certain constitutional rights, and so unauthorized status (reflected in the lack of documentation) cannot support a per se exclusion from “the people” protected by the Bill of Rights. In the post-Heller world, where it is now clear that the Second Amendment right to bear arms is no second-class entitlement, we see no principled way to carve out the Second Amendment and say that the unauthorized (or maybe all noncitizens) are excluded. No language in the Amendment supports such a conclusion, nor, as we have said, does a broader consideration of the Bill of Rights. (Slip op. at 13-14).

As the court notes, this holding creates a circuit split. (Slip op. at 7, 14 n.1). Till the Supreme Court resolves the issue, non-citizens in the Seventh Circuit have Second Amendment protection.

The next question is whether § 922(g)(5) is a valid restriction of the right protected by the Second Amendment. Applying the Seventh Circuit’s “some form of strong showing” standard that is akin to intermediate scrutiny, United States v. Skoien, 614 F.3d 638, 641–42 (7th Cir. 2010) (en banc), the court concludes the statute doesn’t run afoul of the Second Amendment:

Congress’s objective in passing § 922(g) was “to keep guns out of the hands of presumptively risky people” and to “suppress[] armed violence.” [United States v.] Yancey, 621 F.3d [681,] 683–84 [(7th Cir. 2010)]…. One such group includes aliens “who … [are] illegally or unlawfully in the United States.” 18 U.S.C. § 922(g)(5)(A). The government argues that the ban on the possession of firearms by this group of people is substantially related to the statute’s general objectives because such persons are able purposefully to evade detection by law enforcement. We agree with this position: unauthorized noncitizens often live “largely outside the formal system of registration, employment, and identification, [and] are harder to trace and more likely to assume a false identity.” [United States v.] Huitron-Guizar, 678 F.3d [1164,] 1170 [(10th Cir. 2012)]. Persons with a strong incentive to use false identification papers will be more difficult to keep tabs on than the general population. (Section 922(g)(5)(B)’s prohibition on firearms possession by most aliens who are lawfully present but who hold only nonimmigrant visas reflects a similar concern. Holders of nonimmigrant visas sometimes have no address associated with them, making them equally difficult to track.) (Slip op. at 15-16).

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