Illegal Aliens and the Right to Keep and Bear Arms

The Ninth Circuit Court of Appeals today decided

United States v. Torres

, No. 15-10492, involving these two provisions:

"[T]he right of the people to keep and bear Arms, shall not be infringed." U.S. Const. amend. II

and

"It shall be unlawful for any person --

*    *    *

(5) who, being an alien--

(A) is illegally or unlawfully in the United States

*    *    *

to ... possess in or affecting commerce, any firearm or ammunition ...." 18 U.S.C. §922(g).

Does 18 U.S.C. §922(g)(5)(A) violate the Second Amendment, at least as applied to an illegal alien who has lived in the United States for a substantial time? Torres grappled with that question and discussed the variety of approaches taken in the other circuits.

The most obvious question is whether an illegal alien is one of "the people" within the meaning of the Second Amendment. In United States v. Verdugo-Urquidez, 494 U.S. 259 (1990), the Supreme Court held (consistently with our amicus brief) that an alien residing in Mexico was not one of "the people" protected by the Fourth Amendment. However, aliens with long albeit illegal residence in this country are arguably a different category. In District of Columbia v. Heller, 554 U.S. 570 (2008), the landmark Second Amendment precedent, the Court regularly referred to the right to bear arms as belonging to "citizens." But citizens are a subset of the "the people." Legal permanent resident aliens are surely within the "the people." How much farther does that umbrella extend?

Using these two guiding cases, five of our sister circuits have addressed the question of § 922(g)(5)'s constitutionality; however, the inconsistency in reasoning among these courts--though unanimous in ultimate outcome--demonstrates that Heller and Verdugo-Urquidez do not provide us a definitive outcome.

The Fourth, Fifth, and Eighth Circuits have held that illegal aliens are not within "the people." The Seventh Circuit held that illegal aliens with substantial connection to this country are among "the people," but applying "intermediate scrutiny" upheld  §922(g)(5) as constitutional. The Tenth Circuits assumed without deciding that the Seventh was right on "the people" and agreed on upholding the statute anyway. The Ninth followed the same path in the Torres case.

I find the latter approach dubious. The statute is a complete revocation of the core right protected by the Second Amendment. It is not based on wrongdoing, given that some people such as the so-called "dreamers" are illegally in the country without having committed a crime. It is not based on a major difference in dangerousness, as is the case with mental illness. I think that "intermediate scrutiny" is a higher barrier than the Ninth is applying here. The approach based on the definition of "the people" seems to be the better path to the result.

Is this issue headed for a merits decision in the Supreme Court? Maybe not. There is not yet a circuit split on the underlying question of whether §922(g)(5) is constitutional. All six decisions agree that it is, even though they take very different paths to that result. The question lies at the intersection of two hot-button issues -- gun control and the rights of illegal aliens -- and the high court may be content to leave this one alone.

Illegal Aliens and the Right to Keep and Bear Arms curated from Crime and Consequences Blog