Are Undocumented Immigrants Exempt from the Second Amendment?

April 22nd, 2013

One of the more perplexing aspects of recent Second Amendment caselaw is how a number of courts of appeals have consistently held that undocumented immigrants lack protection under the Second Amendment. Of course, even nonresident aliens have rights under the First Amendment (see Bluman v. FEC), Fourth Amendment (Verdugo-Urquidez), Fifth Amendment (reading Miranda rights to Tsarnaev), etc. But what about the Second Amendment?

Anjali Motgi writes in the Stanford Law Review Online to explore why courts have held that undocumented immigrants lack Second Amendment rights. Here is a taste:

The appropriate standard of review for Second Amendment regulations and the application of that standard are issues that the Supreme Court has yet to address, and Carpio-Leon or a case like it offers a fine vehicle to take on these questions. After Heller, in an examination of regulations mandating registration of handguns and prohibiting ownership of semiautomatic assault rifles, the D.C. Circuit applied intermediate scrutiny, a standard it described as requiring a “close fit” between these laws and the government interests they are intended to serve. 20 The level of deference afforded by the Tenth Circuit in Huitron-Guizar, although labeled intermediate scrutiny, seems more like a rational basis review—but perhaps rational basis review is all that is required for judicial review of firearm regulations. If intermediate scrutiny is indeed required, might it be the case that the statute represents a legitimate governmental objective gone awry with an overbroad restriction not substantially related to that objective? If the Second Amendment protects illegal aliens, restrictions on those protections would require either a precise designation of the subset of aliens whose armsbearing is to be restricted, with a particularized justification for that restriction, or a more thorough legislative articulation of the case for treating all illegal aliens as a dangerous class. A more narrowly tailored statute— targeting, for instance, illegal aliens who are eligible for expedited removal, if such individuals are found to be more likely to commit crimes—might survive intermediate scrutiny, even if § 922(g)(5) does not. Presumptive Second Amendment protections for illegal aliens would, then, facilitate a more productive judicial dialogue about permissible crime-reduction legislation.

My point is simply this: if the Second Amendment protects a truly fundamental individual right, then barring any firearm possession by all illegal aliens cannot be upheld without more—a more robust judicial holding that its fundamental protections are categorically denied to a class of persons, or a more-than-cursory legislative justification for the restriction of these protections. If the statute can stand as is, then perhaps the right to bear arms is less central to the constitutional pantheon than its most zealous advocates would have us believe.

When Bluman was being argued, I was amazed that immigrant-rights groups did not submit any amicus briefs [Update: Will Buade reminds me that one group, represented by Bancroft, filed an amicus in support Bluman. I stand corrected]. This should have been in their interest–expand rights for non-citizens. Likewise, I have been amazed that immigrant-rights groups haven’t been more vocal on this issue. Perhaps, the collateral consequences of expanding Citizens United, or expanding gun rights, is antithetical to other interests held by these groups.