Firearms Owners Against Crime
Institute for Legal, Legislative and Educational Action
Institute for Legal, Legislative and Educational Action
The Ninth U.S. Circuit Court of Appeals yesterday joined five of other circuits in rejecting a Second Amendment challenge to a federal law prohibiting unlawful aliens from possessing firearms, though it did so without making a definitive determination as to whether such persons are covered by the amendment.
Senior Circuit Judge N. Randy Smith wrote the opinion.
Smith assumed without deciding that Second Amendment rights extend to the defendant, Victor M. Torres, who was convicted before District Court Judge Edward J. Davila of the Northern District of California of violating 18 U.S.C. §922(g)(5)(A), which prohibits possession of firearms by persons unlawfully present in the United States.
The jurist applied the Ninth Circuit’s two-step inquiry, adopted by the court in the 2013 case of United States v. Chovan, in determining whether a challenged law comports with the Second Amendment. Under that test, the court first asks whether the law burdens Second Amendment-protected conduct, and then determines the level of scrutiny to apply.
Parties’ Contentions
The parties’ disagreement as to the answer to the first question centered around whether “the people” whose rights the amendment protects include illegal immigrants such as the defendant.
Torres—a San Jose gang member who entered the county as an adult after his parents sent him back to his native Mexico at age 16 in response to his criminal ways—argued that the constitutional provision applied to him despite his immigration status because of his connections with the U.S., where he had spent much of his childhood.
The federal government, on the other hand, pushed the reasoning adopted by the Fourth, Fifth, and Eighth U.S. Circuit Courts of Appeals, which had each upheld §922(g)(5) after finding that illegal immigrants are not members of “the people” to which the Second Amendment applies.
First Question Skirted
Smith adopted neither party’s view. Instead, he took the approach adopted by the Tenth Circuit in its 2012 decision in United States v. Huitron-Guizar. That decision interpreted the United States Supreme Court’s 2008 decision in District of Columbia v. Heller which declared that Second Amendment protects “the right of citizens.”
The Tenth Circuit, Smith recited, “like the Seventh Circuit, refused to find that Heller’s use of ‘citizen’ was a conclusive determination that unlawful aliens are not within the scope of the Second Amendment right, but, instead, assumed for the purposes of the analysis that (at least some) unlawful aliens fall within the scope and concluded the statute passed intermediate scrutiny.”
He commented:
“[W]e agree with the Tenth Circuit’s approach, because we believe the state of the law precludes us from reaching a definite answer on whether unlawful aliens are included in the scope of the Second Amendment right. The Tenth Circuit correctly held that this question is ‘large and complicated.’…Therefore, on this record, we find it imprudent to examine whether Torres (as an unlawful alien) falls within the scope of the Second Amendment right. As such, we assume (without deciding) that unlawful aliens, such as Torres, fall within the scope of the Second Amendment right as articulated under Heller…and proceed to the appropriate scrutiny we should give to § 922(g)(5).”
Intermediate Scrutiny Applied
Like the Tenth Circuit, and the Seventh Circuit after it, Smith applied intermediate scrutiny which, he said, was the appropriate level of review because the statute “does not implicate the core Second Amendment right.”
To survive such review, Smith said, a statute must, under Chovan, “have (1) a ‘significant, substantial, or important’ government objective; and (2) a reasonable fit between that objective and the conduct regulated.”
He noted that the government argues that has “interests in crime control and public safety” that need protection, and remarked: “We agree,” elaborating:
“These government interests are particularly applicable to those subject to removal….If armed, unlawful aliens could pose a threat to immigration officers or other law enforcement who attempt to apprehend and remove them.”
Smith went on to say:
“[T]he government’s interests in controlling crime and ensuring public safety are promoted by keeping firearms out of the hands of unlawful aliens—who are subject to removal, are difficult to monitor due to an inherent incentive to falsify information and evade law enforcement, and have already shown they are unable or unwilling to conform their conduct to the laws of this country.”
The case is United States v. Torres, No. 15-10492.