The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Federal law bans illegal aliens from possessing guns, see 18 U.S.C. § 922(g)(5)(A), which applies to anyone "who, being an alien" "is illegally or unlawfully in the United States." No problem, all federal courts who considered the issue have said. Indeed, the Ninth Circuit so held in U.S. v. Torres this January.
But the very next subsection, § 922(g)(5)(B), also bans gun possession by legal aliens who have been admitted "under a nonimmigrant visa." In today's U.S. v. Singh, the Ninth Circuit upheld that, but using logic that strikes me as hard to defend.
1. The Second Amendment speaks of "the right of the people" to keep and bear arms. One could argue that "the people" includes only citizens, or citizens plus permanent residents, and not long-term visitors such as Jose Susumo Azano Matsura:
Azano ran a successful technology business based in Mexico City, but maintained a family home in San Diego. Although Azano's wife and children are United States
citizens, he is neither a naturalized United States citizen nor a permanent resident. Azano, a citizen of Mexico, entered the United States in January 2010 on a B1/B2 visa, which allows visitors entry for pleasure or business if the noncitizen "intends to leave the United States at the end of the temporary stay." Azano traveled weekly back and forth from San Diego to Mexico City for business purposes.
But though the Ninth Circuit noted that some courts have taken this approach in cases involving illegal aliens, it wasn't willing to endorse that approach. Instead, the court chose to "'assume (without deciding) that the Second Amendment extends to' nonimmigrant visa holders"—and yet it held that the ban on gun possession by the lawful visitors was still constitutional.
2. The court began its analysis by concluding that § 922(g)(5) "does not implicate the core Second Amendment right," citing Torres:
In Torres, we determined that the appropriate level of scrutiny to apply to a Second Amendment challenge of § 922(g)(5) is intermediate. Id. at 1262–63 (explaining that
"§ 922(g)(5) does not implicate the core Second Amendment right, and … its burden is tempered").
But wait: That passage from Torres comes from the discussion of § 922(g)(5)(A), the illegal alien gun possession ban. And that discussion begins with this rationale for its judgment about why no "core Second Amendment right" is involved:
Under a different subdivision of § 922(g), which prohibits firearm possession for domestic violence misdemeanants, we held in Chovan that "Section 922(g)(9) does not implicate this core Second Amendment right because it regulates firearm possession for individuals with criminal convictions." The defendant's asserted right to possess a firearm for self-defense was not within the core of the Second Amendment (as identified in Heller), because he was not a "law-abiding, responsible citizen." … Likewise, § 922(g)(5) does not burden this core right, because the prohibition applies only to those who are present in the United States "illegally or unlawfully." 18 U.S.C. § 922(g)(5)(A) (emphasis added).
It seems hard to see why this reasoning would extend to § 922(g)(5)(B), which bans gun possession even by people who are indeed law-abiding and responsible, and not here illegally or unlawfully.
3. The court then concludes that the law passes intermediate scrutiny, because it aims at serving the important interest of preventing crime (as nearly all gun bans ostensibly do), and because
[T]he statute reasonably serves this important interest. It carves out exceptions for visa holders who are less likely to threaten public safety. Section 922(y)(2), for example, exempts those that come to the United States for hunting or sporting purposes. And, § 922(y)(3) creates a broad waiver for visa holders who have "resided in the United States for a continuous period of not less than 180 days" if they receive a statement of support from their embassy or consulate, and the Attorney General confirms that they do not "jeopardize the public safety." 18 U.S.C. § 922(y)(3)(B)(i)–(ii), (C)(ii). We find this tailoring sufficient….
In summary, § 922(g)(5)(B)'s prohibition on firearm possession and ownership by nonimmigrant visa holders serves an important public interest in crime control and
public safety, without substantially burdening a nonimmigrant visa holder's assumed Second Amendment right.
But here too the reasoning strikes me as faulty. It's true that people who lawfully visit here for hunting or sporting purposes are exempted by subsection (y)(2), but many people don't so qualify. If they just come here to spend time with family or do business, the law does "substantially burden" their ability to have guns for self-defense.
Likewise as to the exemption for people who get permission from their embassy and from the Attorney General. First, that exemption doesn't even kick in until you've been in the U.S. for half a year; it seems to me that being denied what, to most, is a constitutional right for half a year is indeed a substantial burden.
And, second, the embassy has no obligation to give you its endorsement, and the AG may deny you the waiver if he concludes that the waiver would not "be in the interests of justice" or if it would "jeopardize the public safety." Given that the very premise of the statute is that the government may justly deny most nonimmigrant visa holders gun rights, precisely because their gun possession jeopardizes the public safety, it seems the AG would have broad authority to say nay even to seemingly law-abiding visitors' requests. Having your rights be subjected to the judgment of foreign and domestic executive officials does indeed "substantially burden" those rights, it seems to me.
(Note that one could argue that visitors could also own guns simply by getting a hunting license or permit from some American jurisdiction, even if they don't have any plans to hunt; the exemption in § 922(y)(2) applies to anyone who is "admitted … for lawful hunting or sporting purposes" or "is in possession of a hunting license or permit lawfully issued in the United States." But the Ninth Circuit decision doesn't offer the hunting-license option as an argument for why the burden is not substantial, perhaps because the judges view the hunting license proviso as implicitly limited to guns that are intended to be used for hunting: If indeed all you need is a license, then maybe the underlying ban is indeed not a substantial burden—but only because the ban could then be trivially evaded by just getting a hunting license that you never plan to use, which would make the whole scheme likely too arbitrary and ineffectual to pass strict scrutiny.)
4. And note the broader point here:
A decision (Torres) that upheld a restriction on the behavior of the non-law-abiding is now being used as a precedent for restricting the behavior of the law-abiding.
The test being applied—intermediate scrutiny—has been applied (and will again be applied in future cases) to restrictions on citizens as well as to those on aliens.
And if the restraints here are seen as merely insubstantial burdens, even though they leave people at the mercy of largely unlimited executive discretion, then the same could likewise easily apply to restraints on law-abiding Americans as well as to those on law-abiding visitors.
(Note that much of the case is actually not about the Second Amendment, but about the application of a federal law that bans campaign contributions by non-permanent-resident aliens; I focus here on the Second Amendment portion, but for more on the election law portion, see this post about the underlying precedent, Bluman v. FEC.)