by Kathy Buckalew*

Do undocumented immigrants have Second Amendment rights? Can they be categorically banned from possessing firearms? In this Contribution, Kathy Buckalew (’19) examines the constitutionality of a categorical ban on possession of firearms and ammunition by undocumented immigrants. The Contribution argues that undocumented immigrants living in the United States have the same individual right to keep and bear arms for purposes of self-defense as do United States citizens. Therefore, undocumented immigrants cannot be categorically prohibited from possessing firearms absent an affirmative showing by the government that such a prohibition is substantially related to the achievement of an important government interest.

The Supreme Court of the United States has held that the Second Amendment confers a fundamental, individual right to keep and bear arms.2 However, since the Court’s landmark decisions in District of Columbia v. Heller in 2008 and McDonald v. City of Chicago in 2010, questions have emerged regarding the scope of this newly recognized individual right. Who possesses the right? Does the right extend beyond the home? Does it exist for purposes other than self-defense? Under what circumstances can individuals be prohibited from exercising the right?

This Contribution will argue that the Second Amendment extends to undocumented immigrants3—at least to those who have a “substantial connection” to the United States, per the Supreme Court’s decision in United States v. Verdugo-Urquidez.4 Because undocumented immigrants are protected by the Second Amendment, restrictions on their ability to keep and bear arms are subject to certain constraints. A categorical ban on firearm possession by undocumented immigrants would be subject to heightened scrutiny, meaning that the ban must, at minimum, be substantially related to an important government interest in order to be constitutional. If such a ban were enacted to reduce gun violence, it would have to be supported by evidence that undocumented immigrants actually engage in such violence, or else it would fail heightened scrutiny and thus be unconstitutional.

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The Second Amendment to the United States Constitution provides: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”5 Based on this language, an individual has the right to keep and bear arms if he or she is part of “the people,” as that phrase is used in the amendment.6

The plain meaning of the phrase “the people” indicates that it encompasses undocumented immigrants living in the United States. In common parlance, “people” is simply a plural form of “person.” This is also the primary dictionary definition of “people;” for instance, the first definition of “people” listed in Black’s Law Dictionary is “men, women, and children generally; persons.”7 Undocumented immigrants certainly fall within this definition. Indeed, the Supreme Court has recognized that undocumented immigrants are “persons” under the Constitution.8 Therefore, under the Second Amendment’s plain language, undocumented immigrants are included in the amendment’s protection of the right to keep and bear arms.

The Supreme Court’s jurisprudence also indicates that at least some undocumented immigrants have Second Amendment rights. In United States v. Verdugo-Urquidez, the Supreme Court recognized that individuals who “have come within the territory of the United States and developed substantial connections with th[e] country” are entitled to constitutional protections.9 The Court held that in light of this, “the people,” as used in the Bill of Rights, encompasses undocumented immigrants who “are part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community.”10 The Court utilized this definition of “the people” again in District of Columbia v. Heller, this time specifically in the context of the Second Amendment.11 Undocumented immigrants who meet this substantial connection test therefore have Second Amendment rights under the Supreme Court’s jurisprudence.

Three circuit courts have held that undocumented immigrants do not have Second Amendment rights.12 These decisions misunderstood Heller. Importantly, the Heller Court was not presented with the issue of whether undocumented immigrants have Second Amendment rights—the issue presented in the case involved a general ban on handgun possession in the home by citizens of the United States.13 Moreover, the Heller Court found that “the people” has a consistent meaning throughout the Bill of Rights.14 The Court relied on the use of “the people” in the First and Fourth Amendments to find that the phrase—and therefore the Second Amendment—confers an individual right rather than a collective right. In so finding, the Heller Court went so far as to approvingly quote the substantial connection test from Verdugo-Urquidez.15 It would therefore be nonsensical to read Heller as overruling that test. And, given the Heller Court’s emphasis on consistent interpretation of the “people,” such a reading would require also depriving undocumented immigrants of their First and Fourth Amendment rights, since those amendments also use the phrase “the people.” There is no indication that the Heller Court intended such a broad deprivation of rights.

The Supreme Court has long held that undocumented immigrants living in the United States have many rights under the constitution. Not only do those with a substantial connection to the United States have Fourth Amendment rights under Verdugo-Urquidez, but undocumented immigrants also have rights under the First Amendment, Fifth Amendment, Sixth Amendment, and Fourteenth Amendment.16 Recognizing that the Second Amendment extends to undocumented immigrants living in the United States is therefore consistent with the Supreme Court’s jurisprudence on other rights enshrined in the Constitution.

Granting the right to keep and bear arms to undocumented immigrants living in the United States is also good policy. Undocumented immigrants are no less likely than United States citizens to have the need to defend themselves in a confrontation. In fact, undocumented immigrants may be even more likely than citizens to face a situation requiring self-defense. Undocumented immigrants are often the targets of violence and, unlike citizens, may not be able or willing to seek help from law enforcement due to a legitimate fear of being detained or removed from the United States.17 In recognition of this, it is essential that undocumented immigrants be covered by the Second Amendment so that they may protect themselves, their families, and their homes from those who would do them harm.

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Because undocumented immigrants—at least those with a substantial connection to the United States—are entitled to keep and bear arms under the Second Amendment, restrictions on their possession of firearms are subject to constitutional means-end scrutiny. Certain restrictions are certainly constitutional.18 A categorical ban on firearm possession by undocumented immigrants, however, is not.

The Supreme Court in Heller found that restrictions on the Second Amendment are subject to heightened scrutiny.19 Although the Supreme Court declined to specify a particular level of heightened scrutiny, circuit courts have analyzed categorical bans on firearm possession by undocumented immigrants using intermediate scrutiny.20 Under intermediate scrutiny, a government action restricting a constitutional right must be substantially related to an important government interest in order to be found lawful by a court.21 The government bears the burden to prove that its action is sufficiently tailored to its interest.22

A categorical ban on firearm possession by undocumented immigrants generally cannot meet this standard of scrutiny. This is because such a ban, presumably passed for the purpose of protecting public safety, is grossly over-inclusive and could not be supported by legislative evidence. Undocumented immigrants pose no greater threat to public safety than do citizens of the United States—indeed, statistics indicate that they pose less of a threat. A 2015 study conducted by the independent nonprofit research organization National Academies of Sciences, Engineering, and Medicine found that immigrants, including those likely to be undocumented, are less likely to commit crimes than United States citizens.23 This finding is supported by a 2017 study conducted by the libertarian Cato Institute, which analyzed data from the United States Census Bureau’s American Community Survey and found that undocumented immigrants are 44 percent less likely to be incarcerated than United States citizens.24 Another large study published in the Journal of Ethnicity in Criminal Justice found that higher immigrant populations are associated with lower crime rates.25 Specifically, that study compared immigration rates with crime rates for 200 metropolitan areas across the country from 1970-2010 and found that each 1% increase in the foreign-born population resulted in a decrease in the violent crime rate of the area by 4.9 crimes.26 Finally, the Oxford Encyclopedia of Criminology and Criminal Justice analyzed a variety of studies that have been conducted on the relationship between immigration and crime, and concluded that immigrants, documented or undocumented, do not increase crime rates.27 These studies indicate that undocumented immigrants are not in fact more likely to engage in violence than native-born Americans. A categorical ban on possession of firearms by undocumented immigrants is therefore over-inclusive in that it deprives many people without any history of violence from exercising their Second Amendment rights.

Courts have found constitutional infirmity when faced with similarly over-inclusive restrictions on the Second Amendment right. For example, in Binderup v. Attorney General, the Third Circuit held a federal firearms restriction unconstitutional as applied to people who were convicted of non-violent misdemeanor offenses decades ago.28 That court’s rationale was that no evidence suggested that barring non-violent misdemeanants from possessing firearms would serve the state’s asserted interest in protecting public safety.29 Therefore, according to the Third Circuit, the statute failed intermediate scrutiny.30

The same rationale applies to a categorical ban on firearm possession by undocumented immigrants. Such a ban is over-inclusive, and no evidence would substantiate indicating that it actually serves the state’s asserted interest. Because the state bears the burden under intermediate scrutiny to prove that its actions restricting constitutional rights are actually substantially related to an important government interest, this lack of evidence would be fatal to the ban.

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It is beyond question that the United States is facing an epidemic of gun violence. However, stripping the constitutional rights of undocumented immigrants will not solve this problem. Undocumented immigrants are just as entitled as American citizens to protect themselves and their families from harm. Categorically prohibiting them from exercising this fundamental right by virtue of their immigration status alone does not serve to protect public safety; it only serves to endanger those undocumented immigrants who have been stripped of their right to defend themselves. The constitution does not allow for such an overly broad infringement on the Second Amendment.

* Kathy Buckalew is a 3L at New York University School of Law. This piece is a commentary on the 2018 Problem at the Evan A. Evans Constitutional Law Moot Court Competition hosted by the University of Wisconsin Moot Court Board. The fact pattern of the competition involved a statute categorically banning firearm possession by undocumented immigrants in a fictional state of the United States. The questions presented were whether the Second Amendment right to possess and use firearms extends to undocumented immigrants living in the United States, and if so, whether the state statute which broadly prohibits undocumented immigrants from possessing any firearm or ammunition violates that right. The views expressed in this article do not necessarily represent the views of the author on this point of law. Rather, this article is a distillation of one side of an argument assigned to the team the author represented at the 2018 Evan A. Evans Constitutional Law Moot Court Competition.
2. District of Columbia v. Heller, 554 U.S. 570 (2008); McDonald v. City of Chicago, 561 U.S. 742 (2010).
3. This article will use the phrase “undocumented immigrants” to describe foreign nationals present in the United States without legal status. Although the term “alien” is predominant in the legal sphere, that term is widely viewed as pejorative, dehumanizing, and offensive, and therefore its use will be avoided in this article except for direct quotations.
4. See United States v. Verdugo-Urquidez, 494 U.S. 259 (1990).
5. U.S. Const. amend. II.
6. See Heller, 554 U.S. at 579-81. See also, United States v. Meza-Rodriguez, 798 F.3d 664, 672 (7th Cir. 2015) (finding that undocumented immigrants are part of “the people” under the Second Amendment, and therefore concluding that they have the right to keep and bear arms).
7. People, Black’s Law Dictionary (10th ed. 2014).
8. See, e.g., Zadvydas v. Davis, 533 U.S. 678, 693 (2001) (“the Due Process Clause applies to all ‘persons’ within the United States, including aliens, whether their presence here is lawful, unlawful, temporary, or permanent.”).
9. United States v. Verdugo-Urquidez, 494 U.S. 259, 271 (1990).
10. Id. at 265.
11. See District of Columbia v. Heller, 554 U.S. 570, 580 (2008) (finding that the Second Amendment confers an individual right, rather than a collective right, because “‘[T]he people’ seems to have been a term of art employed in select parts of the Constitution . . . . [Its uses] sugges[t] that ‘the people’ protected by the Fourth Amendment, and by the First and Second 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.” (alterations in original) (quoting Verdugo-Urquidez, 494 U.S. at 271)).
12. See United States v. Portillo-Munoz, 643 F.3d 437, 440 (5th Cir. 2011) (relying on dicta in Heller stating that the highest interest in the context of the Second Amendment is “the right of law-abiding, responsible citizens to use arms in defense of hearth and home” to hold that Heller forecloses undocumented immigrants from exercising Second Amendment rights); United States v. Carpio-Leon, 701 F.3d 974, 978-79 (4th Cir. 2012) (same); United States v. Flores, 663 F.3d 1022, 1023 (8th Cir. 2011) (per curiam) (summarily endorsing the Fifth Circuit’s view from Portillo-Munoz).
13. See Heller, 554 U.S. at 573-74.
14. See id. at 579, 580 (“Nowhere else in the Constitution does a “right” attributed to “the people” refer to anything other than an individual right. What is more, in all six other provisions of the Constitution that mention “the people,” the term unambiguously refers to all members of the political community, not an unspecified subset.”)
15. Id. at 580.
16. See Bridges v. Wixon, 326 U.S. 135, 148 (1945) (finding that noncitizens have First Amendment rights); United States v. Verdugo-Urquidez, 494 U.S. 259, 271 (1990) (finding that undocumented immigrants with a substantial connection to the United States are entitled to Fourth Amendment protections); Zadvydas v. Davis, 533 U.S. 678, 693-94 (2001) (finding that undocumented immigrants within the United States are entitled to due process of law under the Fifth Amendment); Padilla v. Kenducky, 559 U.S. 356, 374 (2010) (holding that the Sixth Amendment requires that noncitizens in criminal proceedings be advised whether a guilty plea would carry a risk of deportation); Plyler v. Doe, 457 U.S. 202, 214-215 (1982) (finding that undocumented immigrants are entitled to equal protection of the laws under the Fourteenth Amendment).
17. See Nik Theodore, PolicyLink, Insecure Communities: Latino Perceptions of Police Involvement in Immigration Enforcement 5, http://www.policylink.org/sites/default/files/INSECURE_COMMUNITIES_REPORT_FINAL.PDF (finding that 70 percent of undocumented survey respondents reported that they were less likely to contact police if they were victims of a crime due to a fear of potential immigration consequences).
18. See, e.g., Heller, 554 U.S. at 626-27 & n.26 (identifying “longstanding prohibitions on the possession of firearms by felons and the mentally ill, [] laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, [and] laws imposing conditions and qualifications on the commercial sale of arms” as examples of “presumptively lawful regulatory measures”).
19. See Heller, 554 U.S. at 628 & n.27 (2008).
20. See United States v. Meza-Rodriguez, 798 F.3d 664, 672 (7th Cir. 2015); United States v. Huitron-Guizar, 678 F.3d 1164, 1169 (10th Cir. 2012).
21. See, e.g., United States v. Virginia, 518 U.S. 515, 533 (1996).
22. Id.
23. National Academies of Sciences, Engineering, and Medicine, The Integration of Immigrants into American Society, at 328-29 (Mary C. Waters & Marisa Gerstein Pineau eds., 2015).
24. Michelangelo Landgrave & Alex Nowrasteh. Criminal Immigrants: Their Numbers, Demographics, and Countries of Origin, CATO Institute (March 15, 2017), https://www.cato.org/publications/immigration-reform-bulletin/criminal-immigrants-their-numbers-demographics-countries.
25. Robert Adelman, Lesley Williams Reid, Gail Markle, Saskia Weiss, & Charles Jaret, Urban Crime Rates and the Changing Face of Immigration: Evidence across Four Decades, 15 J. of Ethnicity in Crim. Just. 52, 68 (2017).
26. Id.
27. Frances Bernat, Immigration and Crime, Oxford Research Encyclopedia of Criminology & Criminal Justice (April 2017), http://criminology.oxfordre.com/view/10.1093/acrefore/9780190264079.001.0001/acrefore-9780190264079-e-93.
28. Binderup v. Attorney General, 836 F.3d 336, 356-57 (3d Cir. 2016).
29. Id. at 353-54 (“[The record] contains no evidence explaining why banning people like [challengers] (i.e., people who decades ago committed similar misdemeanors) from possessing firearms promotes public safety. . . . [The government] must ‘present some meaningful evidence, not mere assertions, to justify its predictive [and here conclusory] judgments.” (quoting Heller v. District of Columbia, 670 F. 3d 1244, 1259 (D.C. Cir. 2011)).
30. Id. at 356 (“without more [evidence that disarming individuals convicted decades ago of non-violent misdemeanors would promote public safety], there is not a substantial fit between the continuing disarmament of the Challengers and an important government interest. Thus, § 922(g)(1) is unconstitutional as applied to them.”).