Tenth Circuit Upholds Federal Law Barring Illegal Immigrants From Gun Possession

By Chad Burchard | May 16, 2012

On Tuesday, May 8, a three judge panel of the Tenth Circuit Court of Appeals unanimously upheld a lower court’s ruling that the right to bear arms under the Second Amendment to the U.S. Constitution does not apply to illegal immigrants. [United States v. Huitron-Guizar]

The petitioner, an illegal immigrant named Emmanuel Huitron-Guizar, was arrested last year for possession of firearms in violation of federal gun control laws. He was found guilty and sentenced to 18 months in prison, after which he faces deportation.

The Gun Control Act of 1968 bars gun possession for various classes of people, including felons, fugitives, etc. The Act also bars illegal immigrants from gun possession. Huitron-Guizar argued that this provision of the law violated his constitutional rights. Specifically, he made two claims: (1) the provision violated the Equal Protection Clause of the Fourteenth Amendment, and (2) it violated his Second Amendment rights under District of Columbia v. Heller.

The court first addressed the equal protection claim, noting that Huitron-Guizar’s “implicit” argument was that Congress lacked power to, in the words of petitioner’s brief, “discriminate against non-citizens by not allowing them to have all the constitutional rights that United States citizens have.” But “[t]his,” the court countered, “is not correct.” In fact, “[f]ederal statutes that classify based on alienage need only a rational basis” and “Mr. Huitron-Guizar cannot meet his burden of showing that there is no rational relationship … between the classification and a legitimate government end.”

The court spent considerably more time on the Second Amendment claim. Unlike some other amendments which refer to the rights of “persons,” the Second Amendment states that “the right of the people to keep and bear Arms, shall not be infringed.” Thus, the threshold issue facing the court was whether “the people” encompassed illegal immigrants.

The court reviewed the “only Supreme Court case to scrutinize the phrase,” United States v. Verdugo-Urquidez, which concerned the rights of non-citizens under the Fourth Amendment, and concluded that the case “teaches that ‘People’ is a word of broader context than ‘citizens,’ and of narrower content than ‘Persons.’” But the court also looked to the Heller decision, and noted “how frequently the opinion connected arms-bearing and citizenship.”

In the end, however, the court refrained from deciding whether “the people” included illegal aliens. “We think we can avoid the constitutional question,” the court wrote, “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 illegal aliens unlawfully here—and still easily find [the provision] constitutional.”

“The apparent inconsistency,” the court continued, “in assuming the existence of a right before sustaining a law that acts as a blanket prohibition on it is, we believe, outweighed by the prudence of abstaining on a question of such far-reaching dimensions without a full record and adversarial argument.”

The court applied a test of “intermediate scrutiny” to the provision of the Gun Control Act denying gun possession to illegal immigrants. “Under this standard,” it explained, “a law is sustained if the government shows that it is ‘substantially related’ to an ‘important’ official end.” The court had little difficulty finding that the government had met its burden:

Congress may have concluded that illegal aliens, already in probable present violation of the law, simply do not receive the full panoply of constitutional rights enjoyed by law-abiding citizens. Or that such individuals, largely outside the formal system of registration, employment, and identification, are harder to trace and more likely to assume a false identity. Or Congress may have concluded that those who show a willingness to defy our law are candidates for further misfeasance or at least a group that ought not be armed when authorities seek them. It is surely a generalization to suggest … that unlawfully present aliens, as a group, pose a greater threat to public safety—but general laws deal in generalities.

In other words, the law was “substantially related” to what the court readily conceded were the “indisputably ‘important’ interests” of “crime control and public safety.”

Last year, in United States v. Portillo-Munoz, the Fifth Circuit addressed the same issue. Unlike the Tenth Circuit, it held that illegal immigrants did not constitute part of “the people” and thus had no Second Amendment rights. The Eighth Circuit also upheld similar reasoning by one of its lower courts.