Fascinating discussion of Second Amendment in Tenth Circuit's affirmance of alien-in-possession conviction

The Tenth Circuit handed down a really interesting opinion this afternoon in the course of rejecting a set of constitutional attacks on 18 U.S.C. §§ 922(g)(5)(A), which prohibits illegal aliens from possessing firearms.  As explained at the start of the opinion in US v. Huitron-Guizar, No. 11-8051 (11th Cir. May 7, 2012) (available here), the defendant in this case moved "to dismiss the indictment on grounds that § 922(g)(5) unconstitutionally abridges the right to bear arms as interpreted in District of Columbia v. Heller, 554 U.S. 570 (2008), and violates the Fourteenth Amendment’s Equal Protection Clause (which applies to the federal government through the Fifth Amendment’s Due Process Clause)."  Here are some of the many interesting passages from the Tenth Circuit 's discussion:

The right to bear arms, however venerable, is qualified by what one might call the “who,” “what,” “where,” “when,” and “why.”...

Our issue concerns the “who.” Section 922(g), a part of the amended Gun Control Act of 1968, forbids gun possession by nine classes of individuals: felons, fugitives, addicts or users of controlled substances, the mentally ill, illegal and non-immigrant aliens, the dishonorably discharged, renouncers of their citizenship, those subject to court orders for harassing, stalking, or threatening intimate partners or their children, and those convicted for misdemeanor domestic violence.  No Second Amendment challenge since Heller to any of these provisions has succeeded....

Mr. Huitron-Guizar agrees that those guilty of serious crimes and the mentally ill are sensibly stripped of firearms they might otherwise lawfully keep.  Yet he wonders what it is about aliens that permits Congress to impose what he considers a similar disability?...

The [Supreme] Court [in a 1990 Fourth Amendment ruling] seemed unwilling to say that illegal aliens, who reside here voluntarily and who accept some social obligations, have no rights the government is bound to respect when, say, they protest a raid or detention. Instead, Verdugo-Urquidez teaches that “People” is a word of broader content than “citizens,” and of narrower content than “persons.”...

How, historically, has this country regulated weapon possession by foreigners?  Are we to understand gun ownership as among the private rights not generally denied aliens, like printing newspapers or tending a farm, or one of the rights tied to self-government, like voting and jury service, largely limited to citizens?...

We think we can avoid the constitutional question by assuming, for purposes of this case, that the Second Amendment, as a “right of the people,” could very well include, in the absence of a statute restricting such a right, at least some aliens unlawfully here — and still easily find § 922(g)(5) constitutional.

Among the many joys that come from reading all of the Tenth Circuit's work in this case is to see how quickly the panel dispatches a very original (and very unlikely to succeed) effort to spin a political controversy into an argument for a reduced sentence: "Finally, the argument that a departure or variance was in order based on governmental conduct is meritless.  The attempt to connect, in a vague, freewheeling way, the gun possession at issue here with the Fast and Furious Operation of the Bureau of Alcohol, Tobacco, Firearms and Explosives is not persuasive."