Under Hawaii law, a lawfully admitted permanent resident was not permitted to apply for a firearm permit because he was not yet a citizen. A federal district court invalidated this practice, finding an unlawful classification based on alienage under the Equal Protection Clause and the Second Amendment.
The undisputed facts establish that Fotoudis, as a lawful permanent resident alien of the United States (and resident of Hawaii), was denied the opportunity to apply for a permit to acquire firearms solely because of his alienage.3 This classification violates the equal protection clause of the U.S. Constitution. HRS § 134-2(d) is thus unconstitutional as-applied to Fotoudis (and other lawful permanent resident aliens), and Defendants are therefore permanently enjoined from denying Fotoudis the opportunity (1) to apply for a permit to acquire firearms, and (2) to obtain such a permit, if he otherwise meets the qualifications of state law, as specifically set forth in the Conclusion of this Order.
Applying strict scrutiny, the court found this classification was not narrowly tailored:
Applying strict scrutiny and assuming that Hawaii has a sufficient general interest in requiring permits to acquire firearms, denying Fotoudis the opportunity to apply for (and to obtain) a permit merely because he is a lawful permanent resident and not a U.S. citizen “is not a narrowly tailored means of achieving that goal.” …
Accordingly, Fotoudis has succeeded in proving a violation of equal protection — he was denied an opportunity to apply for a permit to acquire firearms based solely on his status as a lawful permanent resident alien.
But in a gargantuan footnote, the court limited this ruling to legal aliens, and not illegal aliens:
The FAC, among other relief, seeks a declaration “that the citizenship requirements contained in Section 134-2(d) of the Hawaii Revised Statutes are unconstitutional.” Doc. No. 26, FAC ¶ 80. To be clear, the court is not concluding that HRS § 134-2(d) is facially unconstitutional. A facial challenge requires “establish[ing] that no set of circumstances exists under which the [challenged statute] would be valid,” Wash. State Grange v. Wash. State Republican Party, 552 U.S. 442, 449 (2008) (quoting United States v. Salerno, 481 U.S. 739, 745 (1987)), or that the statute “lacks any ‘plainly legitimate sweep.’” United States v. Stevens, 559 U.S. 460, 472 (2010) (citation omitted). Although § 134-2(d) uses the term “alien,” it does not distinguish between lawful permanent resident aliens — such as Plaintiff — and illegal or temporary aliens. That is, § 134-2(d) may well satisfy constitutional scrutiny as to some types of aliens such that the court cannot conclude that “no set of circumstances exist under which” the statute would be valid. See, e.g., Fletcher v. Haas, 851 F. Supp. 2d 287, 291 n.7 (D. Mass. 2012) (distinguishing a facial and as-applied challenge by a lawful permanent resident to a Massachusetts firearm regulation because “the regime could be constitutionally applied to an illegal alien or a lawfully admitted alien who does not establish residence in Massachusetts”); Smith v. South Dakota, 781 F. Supp. 2d 879, 883 (D. S.D. 2011) (rejecting a facial challenge by a lawful permanent resident to a South Dakota firearms statute because it “could be constitutionally applied if the applicant were an illegal alien”).
Indeed, many courts have rejected Second Amendment and equal protection challenges by illegal aliens to alien-in-possession statutes. See, e.g., United States v. Huitron-Guizar, 678 F.3d 1164, 1167-69 (10th Cir. 2012) (rejecting challenge to 18 U.S.C. § 922(g)(5)(A), which prohibits illegal aliens from shipping, transporting, possessing, or receiving any firearm or ammunition in interstate or foreign commerce). This Order, however, concerns only lawful permanent resident aliens such as Plaintiff, and the court has drawn no conclusions as to whether rights of any other types of aliens are implicated by § 134-2(d).
The court likewise found the practice invalid under the Second Amendment. Interestingly, the court explained why it reached the Second Amendment issue, even though it already found a violation of Equal Protection:
Given the court’s conclusion regarding a violation of equal protection, Plaintiff is entitled to an injunction regardless of whether the Second Amendment has also been violated. Nevertheless, the court proceeds to address the Second Amendment, given that no Circuit court has addressed this precise equal protection issue, and the many contexts in which aliens have made equal protection challenges. See Korab v. Fink, 748 F.3d 875, 889 (9th Cir. 2014) (Bybee, J., concurring) (observing that “the Graham doctrine — while ostensibly clear when issued — has been, in fact, riddled with exceptions and caveats that make consistent judicial review of alienage classifications difficult”), petition for cert. filed (U.S. Sept. 9, 2014) (No. 14-281).
With that being said, the Second Amendment was violated:
Similarly, interpreting § 134-2(d) to deny Fotoudis the opportunity to apply for (and to obtain, if otherwise qualified) a permit to acquire firearms, solely because he is not a U.S. citizen, also violates the Second Amendment.
Citing Heller, “the people” of the Second Amendment are “the people” of the United States:
Lawful permanent residents such as Fotoudis “are firmly on the path to full citizenship,” and “are entitled to a wide array of constitutional rights.” Fletcher, 851 F. Supp. 2d at 299 (citations omitted). They are “a class of persons who are part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community,” United States v. Verdugo-Urquidez, 494 U.S. 259, 265 (1990), such that they are “among ‘the people’ of the United States,” id. at 273, for purposes of the Second Amendment. See also District of Columbia v. Heller, 554 U.S. 570, 580 (2008) (observing that the “provisions of the Constitution that mention ‘the people’ . . . refers to all members of the political community, not an unspecified subset”) (citing Verdugo-Urquidez, 494 U.S. at 265).
The law fails under strict or intermediate scrutiny:
Nevertheless, HRS § 134-2(d), as applied to Fotoudis fails to “pass constitutional muster regardless of whether intermediate scrutiny or strict scrutiny applies.” …
Here, assuming § 134-2(d)’s general permit requirement implements an “important government objective” (intermediate scrutiny) or a “compelling state interest” (strict scrutiny), it is neither “substantially related” nor “narrowly tailored” to such interests. It categorically excludes (as applied in this case) lawful permanent resident aliens, regardless of whether they are otherwise qualified to acquire firearms, and regardless of whether they might pose a threat to others. And “[a]ny classification based on the assumption that lawful permanent residents are categorically dangerous and that all American citizens by contrast are trustworthy lacks even a reasonable basis.”
This will undoubtedly be appealed. Stay tuned.
One issue the Court did not raise, is privileges or immunities. If, in fact, Justice Thomas is correct that the Second Amendment is extended to the states through the Privileges or Immunities Clause (and I think he is), it would indeed be limited textually to “citizens.” But, if you use Due Process, you don’t have this issue.