The Second Amendment to the United States Constitution guarantees that “the right of the people to keep and bear Arms, shall not be infringed.” U.S. Const. amend. II.
“[T]he Second Amendment does not guarantee the right to possess for every purpose, to possess every type of weapon, to possess at every place, or to possess by every person.”; United States v. Huitron-Guizar, 678 F.3d 1164, 1166 (10th Cir. 2012) (“The right to bear arms, however venerable, is qualified by what one might call the ‘who,’ ‘what,’ ‘where,’ ‘when,’ and ‘why.’”).
In this case, the question of whether possession of firearms by unlawful aliens has historically fallen outside the Second Amendment requires an examination of whether unlawful aliens are included within the term “the people.”
In Heller, the Supreme Court conducted its “first in-depth
examination of the Second Amendment.” 554 U.S. at 635. Throughout its opinion, the Court described the Second Amendment as “protect[ing] the right of citizens” and “belong[ing] to all Americans.” Id. at 581, 595 (emphasis added). The Court also wrote that the amendment “surely elevates above all other interests the right of law-abiding, responsible citizens to use arms in defense of hearth and home.” Id. at 635 (emphasis added).
However, we agree with the Tenth Circuit’s approach, because we believe the state of the law precludes us from reaching a definite answer on whether unlawful aliens are included in the scope of the Second Amendment right. The Tenth Circuit correctly held that this question is “large and complicated.” Id. at 1169. Therefore, on this record, we find it imprudent to examine whether Torres (as an unlawful alien) falls within the scope of the Second Amendment right. As such, we assume (without deciding) that unlawful aliens, such as Torres, fall within the scope of the Second Amendment right as articulated under Heller and Vergudo-Urquidez and proceed to the appropriate scrutiny we should give to § 922(g)(5).
The Court then applies intermediate scrutiny. The statute simply needs to “promote a ‘substantial government interest that would be achieved less effectivelyabsent the regulation.’” Id. (quoting Colacurcio v. City of Kent, 163 F.3d 545, 553 (9th Cir. 1998)). “The [government] has the important government interest of ensuring the safety of both the public and its police officers.”
These government interests are particularly applicable to those subject to removal. “[T]hose who show a willingness to defy our law are . . . a group that ought not be armed when authorities seek them.” Huitron-Guizar, 678 F.3d at 1170. If armed, unlawful aliens could pose a threat to immigration officers or other law enforcement who attempt to apprehend and remove them.
Assuming that unlawful aliens in this country hold some degree of rights under the Second Amendment, a statute § 922(g)(5) prohibiting the possession of firearms by an alien unlawfully present in the United States withstands constitutional scrutiny and is a valid exercise of Congress’s authority.
Read full opinion here: http://cdn.ca9.uscourts.gov/datastore/opinions/2019/01/08/15-10492.pdf
Anton Vialtsin, Esq.
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