Immigrant criminal defendant loses Second Amendment appeal

Second Amendment arguments can find their way into any number of cases. This case involves a criminal prosecution against an undocumented immigrant who fired a gun during a barbeque in Brooklyn. The defendant argues that the Second Amendment prohibits the government from barring the possession of firearms by undocumented immigrants. The Court of Appeals sidesteps that argument and finds the statute that defendant was convicted under is constitutional.

The case is United States v. Perez, issued on July 29. The statute prohibits "an alien . . .  illegally or unlawfully in the United States" from "possessing . . . any firearm or ammunition." My guess is that if the Supreme Court ever takes up the issue of whether the Second Amendment allows the government to restrict these immigrants from owning a weapon, the Court will find it constitutional. But that's not the issue for today. Instead, the Second Circuit treats this as a traditional Second Amendment case.

In resolving cases under the Second Amendment, the court asks two questions: first, whether the law burdens conduct protected by the Second Amendment, and second, what is the appropriate level of judicial scrutiny in assessing the legality of the statute. 

 On the first issue, the Court of Appeals notes that the Supreme Court in the landmark Heller v. District of Columbia (2008) said that gun rights are extended to "law-abiding citizens for lawful purposes," as well as "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." Some Courts of Appeals have interpreted this language to exclude undocumented immigrants from the Second Amendment's protections, including the Third, Fourth, Eighth, Ninth, and Eleventh Circuits. But the Second Circuit will not touch this issue for now, because there is an easier way to resolve this case.

The case is resolved with a holding that the criminal statute passes constitutional muster even if it protects people like defendant. The Court applies "intermediate" scrutiny in determining whether the statute is constitutional. That is more deferential to the government than "strict scrutiny," which usually results in the law being struck down. If the law is substantially related to a legitimate government interest, then it is constitutional. And that is the holding here. Perez's possession of the gun was not in self-defense nor in defense of the home, and he does not qualify as a "law-abiding, responsible citizen" because "his presence here is unlawful." The Second Circuit sees it this way:

The government supplies three principal rationales for the ends served by § 922(g)(5), each of which we find furthers public safety: (1) preventing individuals who live outside the law from possessing     guns, (2) assisting the government in regulating firearm trafficking by preventing those who are beyond the federal government’s control from distributing and purchasing guns, and (3) preventing those who have demonstrated disrespect for our laws from possessing firearms. Based   on   all   three   rationales,   we   conclude   that   §   922(g)(5)   is substantially related to the government’s interest in promoting public safety with respect to the use of firearms.

Judge Menashi concurs in the judgment, stating that Perez's case falls within the Second Amendment's core protections because he was in fact using a gun to protect others at the barbeque. But he goes on to say that Perez does not have any protections under the Second Amendment. "Rather than reach the conclusion that illegal aliens lack Second Amendment   rights   through   excessive   deference   to   Congress’s 'sensitive  public  policy judgments,' I would  join  those circuits that have held that illegal aliens are not among 'the people' to   whom   the   right   to   keep   and   bear   arms   under   the   Second Amendment belongs."