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Title: 7th Circuit Court: Illegal Immigrants Have Second Amendment Rights Too
Source:
Breitbart
URL Source: http://www.breitbart.com/big-govern ... e-second-amendment-rights-too/
Published: Aug 26, 2015
Author: Awr Hawkins
Post Date: 2015-08-26 08:27:16 by cranky
Keywords: None
Views: 2008
Comments: 8
In a word—illegal immigrants have Second Amendment rights too. The case was titled United States v. Meza-Rodriguez, and the decision was handed down on August 20. The Milwaukee-Wisconsin Journal Sentinel reports that the decision was written by Judge Diane Wood “for a panel that included Judges Frank Easterbrook and Joel Flaum.” As for the background to the case, Wood explained that “Mariano Meza-Rodriguez, a citizen of Mexico, was arrested in August 2013… [and found to be] carrying a .22 caliber cartridge.” Because he did not have “documentation” to show that he was in the United States lawfully, he was charged as being in violation of 18 U.S.C. § 922(g)(5), which forbids illegal immigrants from possessing firearms in the United States. Meza-Rodriquez was indicted. He then challenged the indictment by claiming “§ 922(g)(5) impermissibly infringed on his rights under the Second Amendment to the Constitution.” The U.S. District Court for the Eastern District of Wisconsin rejected Meza-Rodriquez’s claim, thereby upholding the indictment. He appealed the District Court’s decision, thus bringing the case to the 7th Circuit. In working through the case, Wood indicated that certain aspects of the language in District of Columbia v. Heller (2008) support the view “that all people, including non-U.S. citizens, whether or not they are authorized to be in the country, enjoy at least some rights under the Second Amendment.” She elaborated: In a 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. Yet the 7th Circuit upheld the District Court’s ruling—which upheld Meza-Rodriguez’s indictment—on the grounds that “the Second Amendment does not preclude certain restrictions on the right to bear arms, including the one imposed by § 922(g)(5).” 
In a case regarding a specific gun control law which bans “unauthorized aliens” (illegal immigrants) from possessing firearms in the United States, the U.S. Court of Appeals for the Seventh Circuit did the work of a contortionist by upholding the law while also pointing out that they “see no principled way to carve out the Second Amendment and say that the unauthorized (or maybe all noncitizens) are excluded.”
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#6. To: cranky, rlk, cranky, TooConservative (#0)
The legal reasoning, so called, of this opinion almost defies belief. It is at odds with the 4th, 5th, and 8th circuits and should be reversed. U.S. v. Meza-Rodriguez, 14-3271, 7th Cir (20 Aug 2015) at 13-14: Judge Wood bounces back and forth with the terms persons and the people and conflates the two. Rights guaranteed to all persons in the BOR includes aliens, legal and illegal. Rights guaranteed to the people are guaranteed to members of the United States political community, not aliens of any description. An extensive quote from Meza-Rodriguez is provided further below. First, I address an earlier 4th Circuit opinion contrary to Meza-Rodriguez. http://www.judicialwatch.org/blog/2012/12/court-illegal-aliens-dont-have-2nd-amendment-rights/ December 21, 2012 Judges across the country have ruled over the years that illegal immigrants have certain constitutional rights in the U.S., but a federal appellate court has drawn the line with the Second Amendment, which interestingly is the topic of heated discussions lately. The case involves a Mexican national, Nicolas Carpio-Leon, arrested and charged for entering the country illegally, using a fake Social Security to obtain a driver’s license and owning two guns. Carpio-Leon has lived in Orangeburg South Carolina for more than a decade and has three American-born children (anchor babies). It was a slam-dunk case for the feds when they indicted him last year; an illegal immigrant using a fake identity in possession of a .22 caliber Marlin rifle, a 9 millimeter Hi-Point pistol and ammunition. Hiding behind the Second Amendment right to bear arms, Carpio-Leon claims he’s entitled to keep the firearms to protect his kids and home. In a court motion, he argues that the constitution also applies to illegal immigrants, that they too have the right to keep guns in their homes for their families’ protection. The Second Amendment could not possibly have excluded illegal immigrants, Carpio-Leon asserts in his motion, because when it was enacted “attitudes toward immigration were the reverse of today’s attitudes.” This laughable argument was slammed by the U.S. Court of Appeals for the Fourth Circuit, which notes the constitutional right to bear arms has always been reserved for law-abiding, responsible citizens. This would automatically exclude those who violate U.S. immigration laws. Therefore illegal immigrants are not covered by the Second Amendment since they are not law-abiding citizens, the court says. In fact, when it comes to the Second Amendment, the Virginia-based appellate court put illegal aliens in the same category as felons convicted of violent crimes. “Thus, the Second Amendment does not guarantee the right to possess for every purpose, to possess every type of weapon, to possess at every place, or to possess by every person,” according to the decision which has been posted by an online publication that covers legal matters. It’s not uncommon to see illegal immigrants suing over the violation of their constitutional rights in U.S. courts, especially the Fourth Amendment because it involves racial profiling and illegal searches by police. Another popular one is the First Amendment, which has been repeatedly used by open-borders activist to fight laws prohibiting day laborers from congregating in public places. http://www.ca4.uscourts.gov/Opinions/Published/115063.P.pdf The case is U.S. v. Carpio-Leon, 11-5063, 4th Cir (14 Dec 2012) At 2: At 5: We have not had occasion to address a Second Amendment challenge to 18 U.S.C. § 922(g)(5). The Fifth, Eighth, and Tenth Circuits, however, have upheld the provision in the face of a Second Amendment challenge, and we have found no court of appeals decision that has found it unconstitutional. The Fifth Circuit and the Eighth Circuit held that the protection of the Second Amendment does not extend to illegal aliens. See United States v. Portillo-Munoz, 643 F.3d 437, 442 (5th Cir. 2011), cert. denied, 132 S. Ct. 1969 (2012); United States v. Flores, 663 F.3d 1022, 1023 (8th Cir. 2011) (per curiam), cert. denied, No. 11-9452, 2012 WL 993946 (U.S. June 25, 2012). And the Tenth Circuit avoided the question of whether illegal aliens are protected by the Second Amendment and upheld § 922(g)(5) because it passed intermediate scrutiny. See United States v. Huitron-Guizar, 678 F.3d 1164, 1169–70 (10th Cir. 2012). At 7: U.S. v. Meza-Rodriguez, 14-3271, 7th Cir (20 Aug 2015), pp 11-14 Given our earlier conclusion that the Second and Fourth Amendments should be read consistently, we find it reasonable to look to Verdugo-Urquidez to determine whether Meza- Rodriguez is entitled to invoke the protections of the Second Amendment. See Verdugo-Urquidez, 494 U.S. at 265. Doing so, we see first that Meza-Rodriguez was in the United States voluntarily; there is no debate on this point. He still has extensive ties with this country, having resided here from the time he arrived over 20 years ago at the age of four or five until his removal. He attended public schools in Milwaukee, developed close relationships with family members and other acquaintances, and worked (though sporadically) at various locations. This is much more than the connections our sister circuits have found to be adequate. See, e.g., Martinez- Aguero, 459 F.3d at 625 (noncitizen’s “regular and lawful entry of the United States pursuant to a valid border-crossing card and her acquiescence in the U.S. system of immigration” was sufficient, even though she had not spent long periods of time in the country); Ibrahim v. Dep't of Homeland Sec., 669 F.3d 983, 996–97 (9th Cir. 2012) (applying test from Verdugo-Urquidez and finding that noncitizen pursuing Ph.D. in the United States for four years had established significant voluntary connection with the United States such that she could invoke the First and Fifth Amendments). The government counters with two arguments. First, it contends that unauthorized noncitizens categorically have not accepted the basic obligations of membership in U.S. society and thus cannot be considered as part of “the people.” Second, it argues that Meza-Rodriguez’s unsavory traits, including his multiple brushes with the law, failure to file tax returns, and lack of a steady job, demonstrate that he has not sufficiently accepted the obligations of living in American [12] society. We take the latter point first. We do not dispute that Meza-Rodriguez has fallen down on the job of performing as a responsible member of the community. But that is not the point. Many people, citizens and noncitizens alike, raising Fourth Amendment claims are likely to have a criminal record, but we see no hint in Verdugo-Urquidez that this is a relevant consideration. Such a test would require a case-by-case examination of the criminal history of every noncitizen (including a lawful permanent resident) who seeks to rely on her constitutional rights under the First, Second, or Fourth Amendment. Not only would this test be difficult to implement; it would also create the potential for a noncitizen to lose constitutional rights she previously possessed simply because she began to behave in a criminal or immoral way. The Second Amendment is not limited to such on-again, offagain protection. Instead, the only question is whether the alien has developed substantial connections as a resident in this country; Meza-Rodriguez has. The government’s argument might have some force if Verdugo-Urquidez represented the Supreme Court’s only relevant holding, but it does not. In Plyler v. Doe, 457 U.S. 202 (1982), which Verdugo-Urquidez left undisturbed, the Court addressed the status of unauthorized aliens as “persons” for constitutional purposes: [13] 457 U.S. at 210. Verdugo-Urquidez summarized Plyler’s holding (along with a number of others in which the Court had recognized that aliens enjoy certain constitutional rights) as follows: “These cases … establish only that aliens receive constitutional protections when they have come within the territory of the United States and developed substantial connections with this country.” 494 U.S. at 271. Meza-Rodriguez satisfies both those criteria. He has lived continuously in the United States for nearly all his life. During that time, his behavior left much to be desired, but as we have said, that does not mean that he lacks substantial connections with this country. Plyler shows that even unauthorized aliens enjoy certain constitutional rights, and so unauthorized status (reflected in the lack of documentation) cannot support a per se exclusion from “the people” protected by the Bill of Rights. 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 [14] (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.1 __________ 1 Because this holding creates a split between our circuit and the Fourth, Fifth, and Eighth Circuits, ante at 7, this opinion has been circulated to all active judges pursuant to Circuit Rule 40(e). No judge voted to hear the case en banc.
Maybe the Court will take it up, maybe not. We'll probably see a few more cases like this before the Supremes weigh in.
There are no replies to Comment # 7. End Trace Mode for Comment # 7.
Top • Page Up • Full Thread • Page Down • Bottom/LatestPlyler shows that even unauthorized aliens enjoy certain constitutional rights, and so unauthorized status (reflected in the lack of documentation) cannot support a per se exclusion from “the people” protected by the Bill of Rights. 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.
Court: Illegal Aliens Don’t Have 2nd Amendment Rights
Concluding that § 922(g)(5) is constitutional, we affirm. On Carpio-Leon’s Second Amendment challenge, we conclude that the scope of the Second Amendment does not extend to provide protection to illegal aliens, because illegal aliens are not law-abiding members of the political community and aliens who have entered the United States unlawfully have no more rights under the Second Amendment than do aliens outside of the United States seeking admittance. On Carpio-Leon’s Fifth Amendment challenge, we conclude that prohibiting illegal aliens, as a class, from possessing firearms is rationally related to Congress’ legitimate interest in public safety.
The government contends that the Second Amendment does not protect illegal aliens because it "codified a preexisting right [to bear arms] that historically has been enjoyed [only] by law-abiding, responsible citizens, and illegal aliens are necessarily not law abiding." In any event, it argues that § 922(g)(5) survives intermediate scrutiny by serving an important interest in public safety. It also notes that Congress has "broad power over immigration-related matters and can choose to disarm illegal aliens."
Employing this analytical structure here, we start by determining whether the scope of the Second Amendment includes the protection of aliens who are illegally in this country. Beginning with the text, the Second Amendment provides that "the right of the people to keep and bear Arms shall not be infringed." U.S. Const. amend. II (emphasis added). In providing its protection to "the people," the Amendment is distinguishable from the Fifth and Fourteenth Amendments, which provide protections to "persons." As Heller noted, the term "the people" is a "‘term of art,’" which is also used in the First and Fourth Amendments, that "‘refers to a class of persons who are part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community.'" Heller, 554 U.S. at 580 (quoting United States v. Verdugo-Urquidez, 494 U.S. 259, 265 (1990)).
[11]
Appellants argue at the outset that undocumented aliens, because of their immigration status, are not “persons within the jurisdiction” of the State of Texas, and that they therefore have no right to the equal protection of Texas law. We reject this argument. Whatever his status under the immigration laws, an alien is
surely a “person” in any ordinary sense of that term. Aliens, even aliens whose presence in this country is unlawful, have long been recognized as “persons” guaranteed due process of law by the Fifth and Fourteenth Amendments. Shaughnessy v. Mezei, 345 U.S. 206, 212 (1953); Wong Wing v. United States, 163 U.S. 228, 238 (1896); Yick Wo v. Hopkins, 118 U.S. 356, 369 (1886). Indeed, we have clearly held that the Fifth Amendment protects aliens whose presence in this country is unlawful from invidious discrimination by the Federal Government.
#7. To: nolu chan (#6)
The legal reasoning, so called, of this opinion almost defies belief. It is at odds with the 4th, 5th, and 8th circuits and should be reversed.
Replies to Comment # 7.
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