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May 7, 2012

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."

May 7, 2012 at 06:56 PM | Permalink


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Concurring Opinions cited a law review article recently on how the lower courts have been careful to apply Heller/McDonald gingerly. Either way, nicely done. I think lawful residents do have "2A rights" but those undocumented or otherwise in breach of the law in some fashion are a tougher case.

Posted by: Joe | May 7, 2012 8:16:26 PM

He's illegally present in the United States.
He has no right to possess anything.

Try this in Germany, mein freund.

Posted by: Adamakis | May 8, 2012 10:03:34 AM

"He has no right to possess anything."

He is still a "person" and has certain basic rights. Making it illegal for him to possess food would be a problem.

Posted by: Joe | May 8, 2012 12:27:05 PM

what a bunch of two-faced nazi wannabee's

you want to point me to the page of the U.S. CONSTITION you found this bit of CRIMNINAL STUPIDITY!

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

Posted by: rodsmith | May 8, 2012 1:50:47 PM

rodsmith ... the 2A is a right "of the people," which is a term that goes to "who."

Constitutional rights have a certain scope and have certain limits, which is determined by various things (e.g., a gun at home -- "where" -- has less limits than in a courtroom). Or, "when" -- 3 A.M. target shooting might be a problem if done in a park.

The reason ("why") for a regulation usually matters.

"What" follows that theme.

"Criminal stupidity," especially given Heller set rules for lower courts, might be best left elsewhere.

Posted by: Joe | May 8, 2012 2:50:02 PM

only one problem there joe! when those rights were written we had just ran the british off and put the end of 1,000 years of opression via british kings. The 2nd amendment was if you read the federalist papers SPECIFICALY put in there to LIMIT the federal ability to have any say in them. sorry but i don't think there are too many ways to creativly interpet


Posted by: rodsmith | May 9, 2012 12:33:59 AM

1000 years of oppression? What happened in 776?

The Federalist Papers doesn't talk about the Bill of Rights. They talked about ratification of the Constitution. That had to come before an amendment to it.

The text of the amendment says rights of "the people" are at stake. If you care about the text, "who" matters. It speaks of "arms." What matters. etc.

Even following an absolutist position.

Posted by: Joe | May 9, 2012 8:28:32 PM

(former law student of Professor Berman): I found it interesting that the Court hints at the controversial and unanswered issues that will probably be addressed down the road by other courts (presumably by the U.S. Supreme Court in the end). It states that "The thrust of Heller...has been to broader the right." It also mentions that some state statutes burdening gun possession by non-citizens have been invalidated under the Equal Protection Clause. Most tellingly, the Court acknowledges that "without a full record and adversarial argument," this issue basically remains unresolved. I practice in the Ninth Circuit and although I haven't checked it out, I haven't heard or read anything about the Court dealing with this issue.

Posted by: Hannibal | Jun 5, 2012 2:56:31 PM

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