Writing for the 7th Circuit, Judge Wood parted company with the 4th, 5th, 8th, and 10th Circuits, and found that the Second Amendment protects non-citizens, as they are part of “the people.”
We first tackle the question whether the Second Amendment protects unauthorized non-U.S. citizens within our borders. The Amendment provides that “the right of the people to keep and bear Arms, shall not be infringed.” U.S. CONST. amend. II. The Supreme Court has confirmed that this language confers an “individual right to possess and carry weapons.” District of Columbia v. Heller, 554 U.S. 570, 592 (2008). But neither Heller nor any other Supreme Court decision has addressed the issue whether unauthorized noncitizens (or noncitizens at all) are among “the people” on whom the Amendment bestows this individual right.
Wood contends that the Framers consciously chose the phrase “people” over “citizen.”
Other language in Heller supports the opposite result: that all people, including non-U.S. citizens, whether or not they are authorized to be in the country, enjoy at least some rights under the Second Amendment. (Although it is hard to find good data about the percentage of noncitizens in the United States before 1820, see BUREAU OF THE CENSUS, U.S. DEP’T OF COMMERCE, HISTORICAL STATISTICS OF THE UNITED STATES 1789-1945: A SUPPLEMENT TO THE STATISTICAL ABSTRACT OF THE UNITED STATES (1949), available at http://www2.census.gov/prod2/statcomp/documents/ HistoricalStatisticsoftheUnitedStates1789-1945.pdf, immigra- tion in the late 18th century was a common phenomenon. And such provisions as Article I, section 2, paragraph 2, which limits membership in the House of Representatives to persons who have been “seven Years a Citizen,” and Article II, section 1, paragraph 4, which requires the President to be “a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution,” show that the drafters of the Constitution used the word “citizen” when they wanted to do so.)
Though, who was a citizen of the United States in 1787? See my article, Original Citizenship. (I promise, it has NOTHING to do with birthright citizenship).
Further, the 2nd Amendment should be read similarly to the 4th Amendment, where “the people” also refers to non-citizens.
Heller noted the similarities between the Second Amendment and the First and Fourth Amendments, imply- ing that the phrase “the people” (which occurs in all three) has the same meaning in all three provisions. See Heller, 554 U.S. at 592 (“[I]t has always been widely understood that the Second Amendment, like the First and Fourth Amendments, codified a pre-existing right.”); id. at 580 (noting that “the people” is “a term of art employed in select parts of the Con- stitution,” including the First, Second, Fourth, Ninth, and Tenth Amendments) (quoting United States v. Verdugo- Urquidez, 494 U.S. 259, 265 (1990)). An interpretation of the Second Amendment as consistent with the other amend- ments passed as part of the Bill of Rights has the advantage of treating identical phrasing in the same way and respect- ing the fact that the first ten amendments were adopted as a package.
The government contends that the noncitizen cannot be part of “the people” because he hasn’t accepted the basic obligation of U.S. society:
First, it contends that unauthorized noncitizens categorically have not accepted the basic obligations of membership in U.S. so- ciety and thus cannot be considered as part of “the people.”
The court rejected this reasoning, explaining that the Second Amendment is not a second-class right, and noncitizens can have this attachment:
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.
Judge Flaum concurred, and would not have reached this issue. This opinion does create a circuit split, and under circuit rules, no judge voted for en banc.
Because this holding creates a split between our circuit and the Fourth, Fifth, and Eighth Circuits, ante at 7, this opinion has been circu- lated to all active judges pursuant to Circuit Rule 40(e). No judge voted to hear the case en banc.
However, the court found the conviction under 18 U.S.C. 922(g)(5) to be permissible under Skoien intermediate scrutiny. And because Congress has an interest in keeping hands out of non-citizens, the conviction was upheld.
Congress’s objective in passing § 922(g) was “to keep guns out of the hands of presumptively risky people” and to “suppress armed violence.” Yancey, 621 F.3d at 683–84 (cit- ing S. REP. NO. 90-1501, at 22 (1968)); see also Huitron-Guizar, 678 F.3d at 1169–70 (§ 922(g)’s purposes are to assist law en- forcement in combating crime and to keep weapons away from those deemed dangerous or irresponsible). 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 gen- eral objectives because such persons are able purposefully to evade detection by law enforcement. We agree with this po- sition: unauthorized noncitizens often live “largely outside the formal system of registration, employment, and identifi- cation, [and] are harder to trace and more likely to assume a false identity.” Huitron-Guizar, 678 F.3d at 1170. 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.)
Although showing some teeth for scrutiny, the court rejects the government’s positions that non-citizens are more likely to commit gun-related crimes.
The government also argues that § 922(g)(5) reflects the likelihood that unauthorized immigrants are more likely to commit future gun-related crimes than persons in the gen- eral population. It offers no data to support that assertion, however, and we have our doubts about its accuracy. The government extrapolates from the fact that persons who are here illegally have “show[n] a willingness to defy our law” to the conclusion that they are likely to abuse guns. This may go too far: the link to firearms is unclear, and unlawful pres- ence in the country is not, without more, a crime. See Arizona v. United States, 132 S. Ct. 2492, 2505 (2012) (“As a general rule, it is not a crime for a removable alien to remain present in the United States.”). While it is a misdemeanor to enter the country improperly, see 8 U.S.C. § 1325(a), many unau- thorized immigrants—such as Meza-Rodriguez himself— were too young to form the requisite intent to violate this statute when they were originally brought to the United States. Even if this future-oriented rationale lacks support, however, the government has an strong interest in prevent- ing people who already have disrespected the law (includ- ing, in addition to aliens unlawfully in the country, felons, §922(g)(1), fugitives, §922(g)(2), and those convicted of misdemeanor crimes of domestic violence, § 922(g)(9)) from possessing guns.
Will the government seek certiorari here? It’s a close call. They won on the underlying issue, but lost on the question of the applicability of the 2nd Amendment. Such a ruling opens up other possible 2nd Amendment challenges by resident aliens who cannot bear arms. This could be the first time the federal government has petitioned for cert on a 2nd Amendment case since Heller itself!