Author: Adam Pitchel, Associate Member, University of Cincinnati Law Review
The right to keep and bear arms has been constitutionally guaranteed since the Founding of the United States. It protects the right of the people to purchase, maintain, and use weapons for a variety of purposes. However, there is a question about whether this protection extends to noncitizens currently residing in the United States. A federal statute places most noncitizens outside of the protection of the Second Amendment. The constitutionality of this statute has been challenged on several occasions, resulting in a split between the Seventh Circuit Court and the Fourth, Fifth, and Eighth Circuit Courts. The Seventh Circuit focuses on the definition of the word “people”, finding that noncitizens are included in this legal term of art and thus protected under the Second Amendment. This approach contrasts with the analyses of the Fourth, Fifth, and Eighth Circuits, which generally agree that the word “people” includes only law-abiding citizens. The later courts erred in their analyses as they mischaracterized the nature of the rights protected by the Second Amendment.
Persons as People
The Seventh Circuit, in Meza-Rodriguez, was asked to determine if the defendant could legally carry a .22 caliber pistol on his person. The defendant was brought to the United States as a child; however he was not a naturalized citizen. He asserted a number of defenses, including that 18 U.S.C. § 922(g)(5) violated his Second Amendment rights to carry a firearm. The Seventh Circuit found that the defendant’s Second Amendment rights depended upon whether the word “people” included noncitizens. To answer this question, the court looked to how “people” had been interpreted with regard to other rights protected by the Constitution. The court determined that noncitizens are considered “people” under the First, Fourth, Fifth, and Fourteenth Amendments, consequently the definition of “people” should have a similar construction for the Second Amendment. As part of this analysis, the court applied the “substantial connections” test outlined in United States v. Verdugo-Urquidez.
Citizens as People
Between 2011 and 2012, the Fourth, Fifth, and Eighth Circuits decided to place noncitizens outside of the protections granted under the Second Amendment. Each of these decisions leaned heavily on the Supreme Court decision District of Columbia v. Heller. In Heller, the Court found that the right to bear arms is limited and, like the First Amendment, it is subject to certain restrictions. The opinion made several references to “law-abiding citizens” and the importance of their right to bear arms remaining free from any infringement. However, Heller did not specifically address a statute that attempted to proscribe a specific group of people from owning firearms. Consequently, the Fourth Circuit in United States v. Carpio-Leon turned to United States v. Chester, where the Fourth Circuit outlined a two-part test to determine the validity of a law that banned certain people from owning firearms. The test first questions whether the law imposes a burden on conduct that falls within the scope of the Second Amendment’s protections. The court determined that the law fell outside of the scope, as noncitizens are not considered “people” for Second Amendment purposes. Since the law fell outside the scope, the court did not address the second part of the Chester test.
The Fifth Circuit in United States v. Portillo-Munoz also cited to the opinion in Heller, however it interpreted the word “people” to mean “members of the political community.” The court also reasoned that rights provided by the Second Amendment were affirmative by giving people the right to do something. Conversely, the rights described in the Fourth Amendment protect people and provides the right to be free from wrongful government intrusion. The court in Portillo-Munoz concluded that the different purposes of the two amendments justified the different meanings attached to “people.”
Second Amendment Rights: Affirmative or Protective
The Fifth Circuit in Portillo-Munoz outlined a dichotomy of rights guaranteed by the Bill of Rights. The court described the rights and the purposes behind them as either “protective” or “affirmative.” The court does not identify the characteristics of an “affirmative” right other than stating they can be limited to include fewer people than a “protective” right. The Fifth Circuit construed the Second Amendment as an affirmative statement by the Framers permitting people to own weapons. Conversely, the Fifth Circuit interpreted the First and Fourth Amendments as negative statutes due to their prohibitive language. However, applying these definitions to the text of the Second Amendment leads to a conclusion that contrasts starkly with the decision of the Fifth Circuit.
The last four words of the Second Amendment, “shall not be infringed,” are indicative of a negative right that forbids government from interfering with a pre-existing right.
The First Amendment also has negative language. The first five words of the text set an equally negative tone, stating the existence of pre-existing rights and preventing the government from intruding upon them. While it has been held that neither the First nor the Second Amendment are without limit, the applicable protection of rights afforded under both Amendments are essentially the same. What remains to be seen is whether the definition of “people” under the Second Amendment mirrors the definition of “people” used throughout the rest of the Constitution and Bill of Rights
Who are “The People?”
Accepting that most, if not all, of the rights mentioned in the Constitution are protective, it must be determined if those rights protect the same groups of people. In Portillo-Munoz and Carpio-Leon, the State makes several arguments that noncitizens do not fall within the category of people protected by the Second Amendment. Most prominently, the State argues that the government has previously been permitted to disarm those determined to be subversive or dangerous via statute. The rationalization for those laws is based on the belief that the Founders intended the Second Amendment to only apply to the law-abiding citizen. Unfortunately, that rationalization cannot apply to noncitizens.
The connection between noncitizens and the disarmament of dangerous people is tentative at best. The court in Carpio-Leon used a historical analysis to justify the denial of Second Amendment rights to noncitizens. Its analysis focuses on actions taken by colonial governments to prevent suspect populations from owning weapons. It used these actions as historical evidence of the government’s ability to disarm people who are not “law-abiding members of the political community.” Unfortunately, those included in the court’s examples have a common trait that is not universal or even prominent in noncitizens. Each member of a suspect population did something to lose their Second Amendment rights, yet noncitizens are deemed presumptively dangerous and unworthy of Second Amendment protection. This difference is important because most noncitizens have no violent tendencies and have every incentive to behave appropriately or risk deportation. A study conducted by the American Immigration Council found that the number of unauthorized immigrants in the United States had tripled from 1990 and 2013, yet the violent crime rate had declined by forty-eight percent during that period. The same study concluded that immigrants are less likely to engage in criminal activity than native-born American citizens. These factors indicate that not only is the fear of the noncitizen gun-owner widely overblown, but also that the violent-immigrant stereotype continues to be perpetuated in Congress and in the courtroom.
The Supreme Court in United States v. Verdugo-Rodriguez reasoned that a noncitizen “[had to] have…developed substantial connections with the country,” before the noncitizen would be considered part of the “people” and be guaranteed the protections provided under the Bill of Rights. This test was originally devised to determine if noncitizens were considered “the people” and permitted to claim Fourth Amendment protections. In Meza-Rodriguez, the Seventh Circuit concluded that the definition of “people” under the Fourth and Second Amendments were the same because the Bill of Rights was adopted as a package without indication that the same term had different meanings between Amendments. However, the court missed an opportunity to strengthen its holding and failed to cite to a particularly relevant passage in the opinion of Johnson v. Eisentrager. In Eisentrager, a noncitizen attempted to invoke their Fifth Amendment rights after being convicted of war crimes in Germany. The Supreme Court denied the noncitizen’s argument however, in its opinion the Court stated “[t]he alien . . . has been accorded a generous and ascending scale of rights as he increases his identity with our society.” This statement implies that the more a noncitizen mingles with society, the more rights the noncitizen gets. If the mere act of entering the United States indicates an intent to integrate into society, then that act alone must provide some basis for access to the rights protected by the Constitution. The Supreme Court in Verdugo-Rodriguez surmises that this initial connection is insufficient and that more connections are needed. However, economic struggles, high unemployment, and reduced demand for low-skilled workers has forced many noncitizens into social isolation, rendering them unable to make the necessary substantial connections.
While the “substantial connections” test can be applied to unauthorized immigrants, this test struggles in its applicability to unnaturalized citizens lawfully in the United States. The statute declares that all people, with a few exceptions, residing in the United States under a nonimmigrant visa are denied protection under the Second Amendment. Most of these nonimmigrant visas have a life span that limits the time a person can lawfully stay in the United States. Consequently, owners of these visas cannot develop the connections to satisfy the “substantial connections” test.
While the court in Portillo-Munoz used suspect logic in its analysis, the history of deference to the legislature regarding immigration policy is too great to ignore. Several courts have held that the government can create laws that would be unconstitutional if applied to citizens, yet are permissible when applied to noncitizens. This judicial and legislative history creates a burden for any noncitizen asserting constitutional rights and implies presumptive constitutionality of anti-immigrant laws. However, this statute applies to both lawful and unlawful noncitizens. While unlawful noncitizens have minimum constitutional protection, lawful noncitizens need more. These noncitizens did not violate the law and commit at crimes at a far lower rate than American-born citizens. The overblown risk of noncitizens engaging in criminal activity is not a compelling argument to bar noncitizens from Second Amendment protections. Both Fourth and the Fifth Circuits used the “dangerous illegal immigrant” justification as their basis to uphold the statute under rational-basis review, yet there is no indication that this explanation would survive a constitutional challenge by a lawful noncitizen.
 18 U.S.C. § 922(g)(5) “It shall be unlawful for any person who, being an alien, is illegally or unlawfully in the United States or has been admitted to the United States under a nonimmigrant visa…to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.”
 798 F.3d 664, 666 (7th Cir. 2015).
 Id. at 667.
 Id. at 669.
 Id. at 669-70.
 Id. (citing United States v. Verdugo Rodriguez, 494 U.S. 259, 265 (1990), “aliens receive constitutional protections when they have come to the territory of the United States and developed substantial connections with this country”).
 See United States v. Carpio-Leon, 701 F.3d 974 (4th Cir. 2012); United States v. Flores, 663 F.3d 1022 (8th Cir. 2011); United States v. Portillo-Munoz, 643 F.3d 437 (5th Cir. 2011).
 District of Columbia v. Heller, 554 U.S. 570 (2008).
 Id. at 613.
 Id. at 625, 635, 644 (placing felons and the mentally-ill outside the class of “law-abiding citizens”).
 United States v. Meza-Rodriguez, 798 F.3d 664, 669 (7th Cir. 2011).
 United States v. Carpio-Leon, 701 F.3d 974 (4th Cir. 2012) (citing United States v. Chester, 628 F.3d 673 (4th Cir. 2010)).
 Id. at 977.
 Id. at 978.
 Id. at 982.
 United States v. Portillo-Munoz, 643 F.3d 437 (5th Cir. 2011) (stating that noncitizens were not members of the American political community and did not have rights under the Second Amendment).
 Id. at 440.
 Id. at 441.
 Id; An “affirmative statute” is defined as one that directs or declares that something shall be done. (Black’s Law Dictionary, Second Edition).
 A “negative statute” is one that prohibits something from being done. (Black’s Law Dictionary, Second Edition).
 U.S. Const. amend. II, “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.”
 U.S. Const. amend. I, “Congress shall make no law…abridging the freedom of speech, or of the press, or the right of the people to peaceably assemble.”
 United States v. Carpio-Leon, 701 F.3d 974, 979 (4th Cir. 2012).
 Walter A. Ewing, Daniel E. Martinez & Ruben G. Rumbaut, The Criminalization of Immigration in the United States 1-2 (2015).
 Id. at 1.
 United States v. Verdugo Rodriguez, 494 U.S. 259, 265 (1990).
 Johnson v. Estranger, 339 U.S. 763 (1950).
 Min Zhou, Growing Up American: The Challenge of Confronting Immigrant Children and Children of Immigrants, 23 Annual Review of Sociology 63, 68 (1997).
 18 U.S.C. § 922(g)(5).
 “How Long Will Your U.S. Visa Allow You to Stay?” http://www.nolo.com/legal-encyclopedia/how-long-will-your-us-visa-allow-you-stay.html (last visited September 27, 2016).
 United States v. Portillo-Munoz, 643 F.3d 437, 441 (5th Cir. 2011).
 Walter A. Ewing, Daniel E. Martinez & Ruben G. Rumbaut, THE CRIMINALIZATION OF IMMIGRATION IN THE UNITED STATES 1-2 (2015).
 See Portillo-Munoz, 643 F.3d 437 at 441; United States v. Carpio-Leon, 701 F.3d 974, 983 (4th Cir. 2012).