Contributions

Immigration and the Second Amendment: Why Undocumented Immigrants Are Entitled to the Fundamental Right to Possess Firearms

By Kathy Buckalew1

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.

* * * * *

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.

* * * * *

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.

* * * * *

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.

 

Notes:

1. 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.”).