Do illegal immigrants have the right to bear arms?

Immigration, Rights

They are breaking the law by being in the United States, but illegal immigrants still have the right to bear arms, according to an August 2015 ruling by the U.S. Seventh Circuit Court of Appeals.

Opponents of this ruling are up in arms (so to speak). Why should someone who is in this country illegally be permitted to enjoy the benefits of the Second Amendment?

“The right of the people to keep and bear arms shall not be infringed”

In an opinion decided on August 20, 2015, the Seventh Circuit Court of Appeals, in the case of the United States of America v. Mariano A. Meza-Rodriguez, found that a person who resides unlawfully in the U.S. is protected by the Second Amendment to the Constitution’s right to bear arms. The Amendment specifically states that “the right of the people to keep and bear Arms, shall not be infringed.”

“It is now clear that the Second Amendment right to bear arms is no second-class entitlement, (and) we see no principled way to carve out the Second Amendment and say that the unauthorized (or maybe all noncitizens) are excluded,” says Judge Diane Wood. “No language in the Amendment supports such a conclusion, nor, as we have said, does a broader consideration of the Bill of Rights.”

And yet, Judge Wood also added that, even for citizens, the right to bear arms is not unlimited. A federal law exists that imposes gun restrictions on felons, individuals convicted of domestic violence, and undocumented immigrants. But, according to Wood, even unlawful immigrants can be considered part of “the public” (or “the people”) that enjoys a Second Amendment right to have a gun for self-defense.

But that differs from what other Courts of Appeals ruled…

“Several other Courts of Appeals (including the Fourth, Eighth, and Fifth Circuit Courts of Appeals) have previously addressed this issue and have ruled that the Second Amendment does not protect those unlawfully residing in the U.S., but those decisions do not bind the Seventh Circuit because the issue never reached the U.S. Supreme Court,” explains Pouyan Darian, a partner at the immigration law firm of Darian Stout, LLP, based in White Plains, New York.

So why did the Seventh Circuit come to a conclusion that is adverse to prior Circuit Court of Appeals rulings in sister jurisdictions? Again, it’s all about the delightfully vague and open-to-interpretation language employed by the Founders:

“The issue hinges on the definition of the phrase, ‘the people,’ as it is used in the Second Amendment,” says Darian. “The Supreme Court stated that ‘the people’ refers to a class of persons who are part of a national community or have otherwise developed sufficient connection with this country to be considered part of that community.” (United States v. Verdugo-Urquidez)

“The Seventh Circuit relied on, among other things, the Supreme Court’s language in Verdugo-Urquidez to determine that the Second Amendment can apply to those unlawfully residing in the U.S.,” says Darian. As such, the court considered the substantial ties Meza-Rodriguez had already established to the United States.

“Meza-Rodriguez entered the United States at the age of 4 or 5 and resided here for 20 years, during which time he attended public schools in Milwaukee and developed community relations,” explains Darian. “The Seventh Circuit found that these ties were sufficient for Meza-Rodriguez to be included as part of ‘the people’ as the language is used in the Second Amendment.”

So, can illegal aliens/undocumented immigrants bear arms, or not?

Aaron S. Haas, a board-certified immigration attorney in San Antonio, Texas, puts it in layman’s terms. “Illegal immigrants do not freely enjoy the right to bear arms,” says Haas. “In fact, the truth is quite the opposite. There is a federal law (18 U.S.C. 922(g)(5)) that expressly prohibits illegal immigrants from bearing arms. In reality, immigration laws are actually very tough on gun law violations.”

Confused yet? It really boils down to looking at one’s constitutional rights and applying the federal law to it. “The Supreme Court ruled that the Second Amendment gives an individual the right to bear arms, but that right can be regulated,” explains Haas.

In other words, the Second Amendment is subject to the reasonable restrictions of the law. “The Seventh Circuit was saying that the constitutional right to bear arms applies to illegal immigrants,” continues Haas, “but 18 U.S.C. 922(g)(5) is a proper federal regulation. So, essentially, illegal immigrants still cannot have guns, but only because it is prohibited by statute, not because the Second Amendment does not apply to them.”

Bottom line: Even legal experts and professionals continue to disagree about the “rights” granted to an undocumented immigrant. As the nation moves into an election year, expect the disagreements to mount and the divide over illegal immigration to grow ever wider.

Related articles at NakedLaw: