A debate on whether immigrants are included in the Second Amendment has raged on in the courts since a 2008 Supreme Court decision said the Constitution gives individuals a right to possess firearms in self-defense. This photo shows a gun store in El Paso, Texas. (AP Photo/Morgan Lee)
As he walked down a Brooklyn block with a loaded gun in his hand on a dry, hot summer evening in 2016, Javier Perez didn't know he was about to trigger a constitutional dilemma.
Seeing a group of youths assaulting a boy from a rival gang with bats and machetes, Perez did what he thought could defuse the situation: He fired a few shots in the air. The brawlers dispersed. No one was injured. Perez walked back to a barbecue he was attending with a few old friends on the same block, returning the gun he had just borrowed to one of them.
Months later, Perez was arrested and charged with a federal crime — being an "alien in possession of a firearm." He faced 10 years in federal prison and deportation.
His lawyers argued the federal law is unconstitutional because it strips people like Perez — millions of undocumented people with no prior criminal record — of Second Amendment rights. The government shot back that the amendment doesn't apply to Perez because of his unlawful status in the country, and even if it did, the law is reasonable in achieving a government's interest in controlling crime.
After failing in the lower courts, the case now has the potential of ending in the U.S. Supreme Court, where it could have far-reaching implications for immigrant rights beyond gun possession, legal experts say.
Does the Second Amendment Cover Immigrants?Both parties in the Perez case based their arguments on the seminal 2008 Supreme Court decision in District of Columbia v. Heller , in which the high court said for the first time that law-abiding individuals had a right to possess firearms for self-defense in their homes.
The court said that right was not absolute, and convicted felons and the mentally ill should be barred from possessing guns. But it didn't say anything about immigrants.
The opinion, penned by Justice Antonin Scalia and joined by Chief Justice John G. Roberts Jr. and Justices Anthony Kennedy, Clarence Thomas and Samuel A. Alito Jr., identified as at the core of the Second Amendment "the right of law-abiding, responsible citizens to use arms in defense of hearth and home."
Since it was handed down, that opinion has become a recurrent Rorschach test for attorneys, scholars and judges debating whether the Second Amendment protects citizens and noncitizens alike.
Attorneys with the Federal Defenders of New York who represented Perez said that Justice Scalia's words were used "offhandedly" to refer to individuals generally, not to citizens of the United States, and that the purpose of the Heller opinion was to clarify whether the Second Amendment protects an individual or a collective right, not to exclude groups of people from it.
But government attorneys argued Heller meant citizens in a literal sense.
Pratheepan Gulasekaram, a professor at Santa Clara University School of Law and nationally known scholar who has written extensively on the intersection of Second Amendment rights and immigrant rights in the wake of Heller, pointed out that the language of the amendment itself references "the people" and that Justice Scalia used the word "citizen" deliberately in the majority opinion. He called it a "sleight of hand, a way of sort of slipping that word in," without justifying it or providing an explanation.
"Can you interpret 'the people' as only covering citizens?" Gulasekaram said. "That's actually a fairly indefensible interpretation if you think that the Second Amendment is an individual right of self-defense."
Up until the Heller decision, there was open debate as to whether the Second Amendment recognized only the right of people to organize in armed militias, a form of collective protection against a tyrannical government or foreign actors.
In that view, it would make more sense to see the Second Amendment as applying to American citizens. But the Heller decision established the right to bear arms as an individual right. At the same time, it didn't explicitly exclude immigrants, Gulasekaram told Law360.
Sanford V. Levinson, a professor of constitutional law at the University of Texas School of Law in Austin, said the Heller decision's focus on individual rights creates a logical basis for extending Second Amendment rights to all people, with very few exceptions, immigration status not being one.
"If you really focus on self-defense, then it's not clear to me why you need to be a citizen, in order to have that right," he told Law360.
The 14th Amendment, which grants all people equal protection under the law, uses the word "persons," not "citizens." So if all people are equally protected, the Second Amendment also applies to all people within the boundaries of the country, he said.
Legal scholars point out that immigrants already receive constitutional protections. For instance, it has long been established that they have First Amendment rights to free speech and freedom of religion. They are entitled to due process rights in criminal prosecutions and immigration proceedings. They enjoy Fourth Amendment rights against unreasonable search and seizure, provided that they have established a connection with the United States.
"I think everybody admits that aliens, including undocumented aliens, are within the protection of the law, in some sense," Levinson said. "So the question is, well, does that protection extend to being able to defend themselves through the lawful possession of firearms? Why not?"
Levinson said the Supreme Court has not provided any useful insights into Second Amendment protection for noncitizens.
After Heller, in another landmark decision in 2010 in the case McDonald v. City of Chicago , the high court ruled that the same Second Amendment protection granted by the Heller decision, which struck down the District of Columbia's ban on handgun possession, extended to the states as well through a process called "incorporation" granted under the due process clause in the 14th Amendment. That decision didn't deal, however, on who is entitled to Second Amendment rights.
Lenni B. Benson, a professor of immigration law at New York Law School, said cases like Perez's show how much power Congress has in regulating the lives of immigrants, from lawful residents to people like him who lack any lawful status in the country, and how much deference the judiciary has been giving to the government to limit their rights.
"Citizen or noncitizen, this is an example of the tremendous power of government to upend your life," she told Law360. " At the core of this case, is this issue of how we treat, constitutionally, the people living amongst us."
According to data on denials of gun licenses collected by the Federal Bureau of Investigation from November 1998 to August of this year, the National Instant Criminal Background Check System has denied over 38,000 licenses to applicants on grounds that they were unauthorized immigrants, equal to 1.9% of the total.
But members of Congress from both parties have insisted immigrants, in particular unauthorized ones, pose a public safety risk, and that gave them the support of the American people in drafting increasing restrictions on noncitizens.
The law Perez was charged with breaking was passed as a part of an amendment to Title VII of the Omnibus Crime Control and Safe Streets Act of 1968. The law was a last-minute floor amendment proposed by Sen. Russell Long, a Democrat from Louisiana, and did not include data supporting a connection between unauthorized immigrants and danger to society or firearms use.
"Study after study has shown that immigrants of any stripe, legal or illegal, are not more likely than American citizens to commit regular crime or violent crime. In fact, the rates of violent crime are actually lower among immigrants, both those who are documented and those who are undocumented," Steven J. Mulroy, a constitutional and criminal law professor at University of Memphis' Cecil C. Humphreys School of Law, told Law360.
The Perez CasePerez, a Mexican national, crossed the border into the United States illegally when he was 13. As a teenager and a young adult in Brooklyn, he associated with a gang called Niños Malos, but he had never got involved with the criminal justice system until the shooting.
By the time of the incident, Perez was 27 and had not been a part of the gang for seven years. He had moved to Connecticut, had two American-born daughters, and had been working as a carpenter at construction sites.
On July 23, 2016, he had the gun, a .380-caliber Davis Industries semi-automatic pistol, only a few minutes. But under Section 922, Title 18 of the United States Code, which prohibits unlawful immigrants from possessing firearms under any circumstances, it was enough to get him into trouble. After his arrest, Perez was held without bail.
Samuel I. Jacobson of the Federal Defenders of New York, who represented Perez, tried to get his charges dismissed, arguing the law was unconstitutional.
In an eerily empty Brooklyn courtroom in July 2018, with Perez sitting silent at his side, Jacobson argued unauthorized immigrants have long been considered by courts around the country as being among the "persons" referenced in the Fifth and 14th Amendments and granted due process protections, and they have been considered part of "the people" in the context of the First and Fourth Amendments. Jacobson said the Second Amendment, which spells out "the right of the people to keep and bear arms," was no different.
"This identical phrasing — in amendments that were adopted at the same time as a package — should be treated in the same way," his motion for dismissal says.
Federal prosecutor Tanya Hajjar argued the Second Amendment didn't apply to Perez because he was in the country illegally. Hajjar also argued in court that even assuming Perez had a constitutional right to bear arms, the federal law restricting unlawful immigrants was an acceptable exception to that right. Unlawful immigrants are harder to track, less likely to register firearms and are more prone to commit crimes, and the government has a compelling interest in preventing them from possessing firearms, Hajjar said in court.
Ultimately, U.S. District Judge Carol Bagley Amon accepted the government's view that the law is constitutional, but didn't rule on whether Perez was entitled to Second Amendment protections.
"Congress' interest in prohibiting persons who are difficult to track and who have an interest in eluding law enforcement is sufficiently strong to support the conclusion that [the law] does not impermissibly restrict Perez's presumed Second Amendment right to bear arms," the judge wrote in an order dismissing the motion.
Facing a decade behind bars and hardship for his family, including that of his parents still living in Mexico, Perez pled guilty to the charge in October 2018 in exchange for a shorter sentence. Months later, the judge sentenced him to one year and eight months in prison. As part of his plea agreement, however, Perez preserved the right to appeal Judge Bagley Amon's order on his motion to dismiss, paving the way for his legal fight to reach the Second Circuit.
Perez was confined at Brooklyn MDC, a federal detention complex in the same neighborhood where he fired the gun, and was released in June, according to Bureau of Prisons records.
It is unclear whether Perez has been deported back to Mexico. His attorneys with the Federal Defenders of New York declined to comment for this story.
Perez's case marked the first time the law he was charged with breaking, Section 922(g)(5) , Title 18 of the United States Code, was challenged in the Second Circuit after the Heller decision.
What Other Circuits Said
However, similar cases have already played out in other courts of appeals with some split results.
The Fourth, Fifth and Eighth Circuits all held that unauthorized immigrants are not included in "the people" of the Second Amendment. The Tenth Circuit avoided answering that question. Only the Seventh Circuit offered a path for people living in the country illegally to invoke the Second Amendment.
In the case United States v. Portillo-Munoz , the Fifth Circuit held in June 2011 that the language in Heller excluded unauthorized immigrants from qualifying as law-abiding members of the political community, and they could not claim Second Amendment protection. The case was the first to challenge the constitutionality of the law in a federal court of appeals.
In December the same year, the Eighth Circuit reached the same conclusion in a two-page decision in United States v. Flores .
In 2012, in the case United States v. Carpio-Leon , the Fourth Circuit ruled that the law is constitutional, both because unauthorized immigrants cannot be considered law-abiding members of the political community for the purpose of the Second Amendment, and because the government had the power to prohibit them from possessing firearms.
The Tenth Circuit, in a 2012 decision in the case United States v. Huitron-Guizar , said it didn't have to decide whether the Second Amendment covers unauthorized immigrants because the law was justified in achieving crime control and public safety, passing constitutional scrutiny.
But in 2015, in the case United States v. Meza-Rodriguez , the Seventh Circuit held that although the law was constitutional, unauthorized immigrants could not categorically be excluded by the Second Amendment.
In an opinion, Judge Diane P. Wood cited the 1990 case United States v. Verdugo-Urquidez , in which the Supreme Court said that all people, regardless of citizenship, who are part of the "national community" or who manifest a "sufficient connection with the United States" are entitled to the rights spelled out in the First, Second and Fourth Amendments.
That case itself relied heavily on the high court's decision in the 1982 case Plyler v. Doe , which struck down a Texas law denying funding for education to unauthorized immigrant children, claiming that even people in the country illegally had long enjoyed the due process of law granted by the Fifth and 14th Amendments
"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," Judge Wood wrote.
Judge Joel M. Flaum, who was part of the Seventh Circuit panel, said he had "doubts that the Second Amendment grants undocumented immigrants the right to bear arms" but concurred in the judgment.
The Second Circuit DecisionDuring oral arguments held in February 2020, Yuanchung Lee of the Federal Defenders urged the Second Circuit to strike down the alien-in-possession law, citing both the Heller and the Verdugo-Urquidez decisions in support of Perez's Second Amendment claims.
"The millions of undocumented immigrants like Mr. Perez have the inherent right to self-defense just like the rest of us," Lee told the judges. "The law that bars them from effectively exercising that right by preventing them from having a gun under any circumstance violates the Second Amendment."
The government, represented by Kevin Trowel, said the Heller scenario, that of a gun kept at home for self-defense, didn't apply to Perez because it was out in the streets. But the main argument to restrict his ability to possess a gun rested on the interest of the government in controlling crime and the proliferation of firearms.
"To permit a class of people who are themselves untraceable to possess firearms, which the government has a compelling interest in tracing, would just simply defeat the overarching purpose," Trowel told the judges.
In a decision at the end of July, a three-judge panel delivered a defeat for Perez, holding that the law he challenged was constitutional, but there was a split in reasoning.
Two judges, Susan L. Carney and John M. Walker, Jr., said in the majority opinion that they were not deciding whether the Second Amendment protects immigrants living in the country illegally like Perez. Even if it did, the judges wrote, the law survives constitutional scrutiny because it protects an important government interest: ensuring public safety.
The opinion, penned by Judge Walker, relied heavily on the Heller decision. The judges set aside the question of whether Heller meant that the Second Amendment applied only to citizens, instead focusing on the concept of law-abiding. Because he was in the country illegally, Perez had shown disregard for the law, so he could be excluded from the protections of the Second Amendment, the judges said.
"Perez also does not qualify as a 'law-abiding, responsible citizen' because, however he may choose to live his life in the United States, his presence here is unlawful," the opinion says.
Gulasekaram said the majority opinion erroneously conflated whether a person is law-abiding with their immigration status. Doing that, the Second Circuit is essentially placing him on the same level as felons, including violent ones, who have been traditionally restricted from possessing firearms. Despite being in the country illegally, Perez had not been convicted of any crime, including immigration crimes, at the time he fired the gun. Being unlawfully present in the United States is not a crime, but an administrative violation.
Following the reasoning of the majority, the scholar said, people with other types of administrative infractions, say traffic violations, could also be deemed not law-abiding and be prohibited from possessing guns. But that would be a very "thin" definition of law-abiding, and not what Heller intended, Gulasekaram said.
Refusing to extend Second Amendment protections to undocumented people like Perez just in light of their immigration status amounts to a "perpetual exclusion" that actually goes against the principles eluciated in Heller, he added.
"It doesn't matter whether one actually has significantly longtime ties to the United States. It doesn't matter if they need the firearm for self-defense. It doesn't matter if it's a handgun, the typical handgun protected by the Heller opinion. None of that matters. All that matters is at one point they had, they were out of status," he said.
In a concurring opinion, Judge Steven J. Menashi criticized the court's focus on whether Perez could be considered a law-abiding person, saying the reasoning could backfire and be used to restrict gun rights to all people, including American citizens. Instead, he wrote, the court should have just ruled that the Second Amendment applies only to citizens, and therefore not to Perez.
Supreme Court PotentialLawyers for Perez declined to comment on whether they were seeking an en banc review in the Second Circuit or if they were working on a petition for a writ to the Supreme Court.
The constitutional issue at the center of the case and the circuit split on immigrant gun rights, however, give an opening to petition the Supreme Court, according to experts.
Scholars are looking at the case with concern. If the Supreme Court decided to hear it, they say, a decision could not only limit Second Amendment rights for immigrants, but also spill over into long-established constitutional rights they've already earned with case law.
Geoffrey A. Hoffman, a professor of immigration law at the University of Houston Law Center, where he directs an immigration clinic, told Law360 that the Second Circuit decision in the Perez case and similar ones dealing with Second Amendment issues can have a domino effect, with implications for other rights.
"You're now decreasing the Second Amendment with respect to immigrants. And what does that say about the First Amendment?" he said. "This decision could be interpreted, more globally, to implicate and undermine immigrants' rights in many different areas."
Geoffrey Heeren, a professor of immigration law at University of Idaho College of Law, said the opinion by Judge Menashi, which follows the reasoning of a majority of the courts of appeals, shows a tendency to cast immigrants as a second class of people, while the Constitution meant to apply most rights to all people present on the United States territory, regardless of citizenship.
"That's my concern when I look at these cases — It's this evolving trend to limit the definition of 'the people' to citizens," he told Law360. "The way that the courts decide cases under the Second Amendment could bleed over into the analysis of other issues."
Heeren said he was most concerned that courts would ultimately limit First Amendment rights of immigrants.
"That goes to the heart of our democracy," he said.
It's unclear whether the high court would agree to hear the case. While the lower courts are deeply divided on whether the Second Amendment applies to noncitizens, in particular to unauthorized immigrants like Perez, the Supreme Court has so far refused to hear similar cases.
Gulasekaram said the high court might be trying to avoid cases that have a large potential of impacting constitutional rights in a broader sense.
"Constitutional rights don't exist in a vacuum. If you make that decision how far the Second Amendment extends, you are going to influence other parts of the Constitution and how far they extend," he said.
On the other hand, the current conservative majority on the high bench might try to achieve restrictions of constitutional rights for noncitizens, and use a Second Amendment case such as Perez's as a vehicle to do so. Whether they will do that is a different question, Gulasekaram said.
Since Heller, there have been more than 1,000 cases brought on alleged Second Amendment violations, but courts haven't been following a coherent doctrine. In general, judges tend to uphold gun regulations, Levinson said.
The question presented by the Perez case, although it's not a novelty in lower courts, has never been addressed by the Supreme Court. But that and the circuit split do not mean that the court would take the case. Four justices must agree on hearing a case for it to end up on the high court's docket.
Supreme Court judges engage in careful predictions of the behavior of their own colleagues, before deciding whether they want to grant appeal. In the case of Second Amendment cases, that prediction becomes even more difficult, because it's an issue where there isn't a clear ideological divide, said Levinson, who is also a political scientist.
"You are not likely to grant an appeal in a case where you think that your colleagues would come out the wrong way," he said. "We can toss around over dreams on how Amy Barrett might vote, or John Roberts, or Brett Kavanaugh. But I think it's very, very clear that the political liberals will never vote to grant an appeal on a gun case, because they're fearful of losing."
Mulroy at the University of Memphis said the circuit split does increase the chances that the high court might be interested in hearing the case.
"There is a tension there between streams of conservative jurisprudence, which would be generous with Second Amendment rights but less generous with respect to immigrant rights," he said. "This case presents a nice tension between the two."
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--Editing by Robert Rudinger.