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October 05, 2015 Articles

Does the Second Amendment Protect Unauthorized Aliens?

The Seventh Circuit makes a compelling argument in U.S. v. Meza-Rodriguez.

By John Pierce – October 5, 2015

It is a question that several circuit courts have struggled with. Does the Second Amendment protect unauthorized aliens within the borders of the United States? The answer, according to a compelling argument from the Seventh Circuit Court of Appeals, is yes.

On August 20, 2015, the court ruled in the case of United States v. Meza-Rodriguez (7th Cir. 2015). The defendant in this case was Mariano Meza-Rodriguez, a citizen of Mexico whose parents brought him to the United States as a young child. He remained in the United States from that time without ever becoming a citizen or a documented resident alien.

In 2013, Meza-Rodriguez was arrested in Milwaukee, Wisconsin, following a bar fight. Based upon the fact that he was carrying a single .22 caliber cartridge at the time of his arrest, he was subsequently indicted for illegal possession of ammunition in violation of 18 U.S.C. § 922(g)(5) and tried in the U.S. District Court for the Eastern District of Wisconsin. Meza-Rodriguez moved to dismiss the indictment on the basis that section 922(g)(5) violated his Second Amendment rights. The government successfully presented the argument that the Second Amendment does not protect unauthorized aliens and the motion was denied by the district court.

Ultimately, Meza-Rodriguez pleaded guilty in the district court as part of a plea agreement that resulted in his deportation and a permanent ban on reentry to the United States. However, he preserved the Second Amendment issue for appeal and it is this narrowly tailored issue that went before the Seventh Circuit. Specifically, the primary question that the court addressed is whether the Second Amendment protects unauthorized non-U.S. citizens within our borders.

In evaluating the constitutional challenge, the court started with the general proposition recognized by the Supreme Court in District of Columbia v. Heller, 554 U.S. 570 (2008), that the Second Amendment’s protection of “the right of the people to keep and bear Arms . . . confers an individual right to possess and carry weapons.” This then gives rise to the secondary question of “whether unauthorized noncitizens (or noncitizens at all) are among ‘the people’ on whom the Amendment bestows this individual right.” The court noted that several other circuits had addressed some form of this issue and had found that unauthorized aliens were not protected, often based upon language from Heller. These include the 4th Circuit in United States v. Carpio-Leon, 701 F.3d 974 (4th Cir. 2012), the 5th Circuit in United States v. Portillo-Munoz, 643 F.3d 437 (5th Cir. 2011), and the 8th Circuit in United States v. Flores, 663 F.3d 1022 (8th Cir. 2011) (per curiam).

However, the court went on to cite its own analysis from Friedman v. City of Highland Park, 784 F.3d 406 (7th Cir.2015) in which they found that “Heller does not purport to define the full scope of the Second Amendment.” Rather, as the 10th Circuit stated in United States v. Huitron-Guizar, 678 F.3d 1164 (10th Cir. 2012), “the question in Heller was the amendment’s raison d'être—does it protect an individual or collective right?—and aliens were not part of the calculus.”

Having determined that the language in Heller does not preclude such an inquiry, the court started its analysis by noting that several clauses in the Constitution use the term “citizen” when referring to a specific requirement of citizenship. These clauses, they stated, “show that the drafters of the Constitution used the word ‘citizen’ when they wanted to do so.” Finding that the terms “the people” and “citizen” are not necessarily synonymous for purposes of constitutional analysis, the court then turned to a determination of what the term “the people” does mean in the context of the Second Amendment.

Citing both Heller and United States v. Verdugo-Urquidez, 494 U.S. 259 (1990)the court held that the term “the people” means the same thing when used in the Second Amendment as it does when used in “other amendments passed as part of the Bill of Rights [which] has the advantage of treating identical phrasing in the same way and respecting the fact that the first ten amendments were adopted as a package.” Having so found, the court adopted the analysis governing who comprises “the people” from Verdugo-Urquidez. In Verdugo-Urquidez the Supreme Court held that “the people” protected by the Fourth Amendment, and by the First and Second Amendments, and to whom rights and powers are reserved in the Ninth and Tenth Amendments, refers to 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. . . . [A]liens receive constitutional protections when they have come within the territory of the United States and developed substantial connections with this country.

In 2006, the 5th Circuit restated this finding in Martinez-Aguero v. Gonzalez, 459 F.3d 618 (5th Cir. 2006) by holding that “whether a noncitizen can invoke the Fourth Amendment depends on whether she has substantial connections with the United States, i.e., whether she is in the country of her own accord and has accepted some societal obligations.” Here, the court noted, Meza-Rodriguez was in the United States of his own accord, and has significant ties with the community including over 20 years of residence, school attendance, family connections, and employment history. The court found that this more than satisfies the requirements for “substantial connections.”

As to the government’s assertion that Meza-Rodriguez’s criminal history, including the act of remaining in the country illegally, precluded him from claiming constitutional protection on the basis that it demonstrated that he had “not accepted the basic obligations of membership in U.S. society,” the court found this argument unpersuasive. The court held instead that “[t]he Second Amendment is not limited to such on-again, off-again protection. Instead, the only question is whether the alien has developed substantial connections as a resident in this country.”

The court concluded its analysis by holding that “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.”

Having found that Meza-Rodriguez does enjoy Second Amendment rights, the court then turned to the question of whether section 922(g)(5) violated his Second Amendment rights. In making this determination, the court adopted a level of scrutiny that they described as “some form of strong showing, akin to intermediate scrutiny.” The court then held that “Congress’s interest in prohibiting persons who are difficult to track and who have an interest in eluding law enforcement is strong enough” to satisfy this heightened level of scrutiny.

While Meza-Rodriguez ultimately lost his appeal, the holding that unauthorized aliens, and other categories of noncitizens, with ‘substantial connections’ to the country enjoy the protection of the Bill of Rights is a step in the right direction for noncitizen civil rights. As for the Second Amendment, the strong language from the court noting that the Second Amendment is “no second-class entitlement” demonstrates just how far our jurisprudence has come since Heller. However, the federal courts will have to better articulate and adopt a clear standard of scrutiny to be applied in similar cases going forward, to further ensure that these rights are adequately protected.

Keywords: litigation, civil rights, Second Amendment, scope of fundamental rights, unauthorized aliens, noncitizens

John Pierce is with the Law Office of John Pierce, Esq. in Bristol, Virginia.

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