The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Kevin Ugurit Fierro-Morales is being prosecuted for possessing a short-barreled shotgun, and for possessing a firearm while "being an alien" "illegally or unlawfully in the United States" (in violation of 18 U.S.C. § 922(g)(5)(A)). But when he was arrested, he was covered by the Defered Action for Childhood Arrivals program—should that lead him to be treated as lawfully present, and as entitled to Second Amendment rights? (Set aside the separate charge short-barreled shotgun charge for now.)
No and no, a federal district court in San Diego held Tuesday. First, DACA made clear that President Obama's action didn't itself confer legal status: "[T]he provisions of DACA promising to defer removal and to authorize work did not confer lawful immigration status or create ambiguity as to the prohibitions of § 922(g)(5)(A)."
Second, the Second Amendment applies only to the responsible and law-abiding, whether just "responsible, law-abiding citizens" or also responsible, law-abiding permanent residents or even responsible, law-abiding temporary visitors. (The court doesn't decide on the rights of legal aliens.) Congress may ban "possession of firearms by an alien in the United States with no legal status," and DACA recipients don't have legal status. (I'm oversimplifying the court's Second Amendment discussion a bit, but that's the gist.)