Guns

Even Legal Visitors to U.S. Can Be Denied Second Amendment Rights

So says the Ninth Circuit, treating legal visitors as subject to the same reduced protection as that applied to illegal aliens.

|The Volokh Conspiracy |

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.)

NEXT: I Testified Before Congress About Hate Crimes and the Alt-Right. Here's What Happened.

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  1. “The 9th Circuit xenophobes” sounds like a good name for a rock band.

    1. I still prefer the tried and true, 9th Circus.

  2. With all due respect, professor, you’re wasting your time and mental energy trying to make sense of these rulings. They’re in bad faith, and the judges know it. There’s no level of argumentation that would convince them to rule in favor of any 2nd Amendment right, and they’ll tie themselves into pretzels to rule in favor of any government restriction, no matter how stupid, tyrannical, silly, ineffective or blatantly unconstitutional.

    1. Exactly. It’s California. The Second Amendment doesn’t preserve a right which they consider important, it only presents an inconvenience which requires the courts to construct a rationale for denying the right. Whether or not such rationale is logical or plausible is not even relevant.

      1. Remove “It’s California” and your post is still just as accurate. Kachalsky, Woollard, Drake, Highland Park (Illinois AWB), Peruta, San Francisco (gun storage), Gould, and on and on. There are numerous examples of the lower courts just ignoring Heller and the 2nd Amendment because they don’t like it. Until and unless the Supreme Court puts a stop to it, it will continue.

        1. I wonder ehy these same judges do not ignore Roe as they do with Heller.

          1. Because they like legal baby murder.

            1. It is as if for these people, a woman’s right to choose ends at their lady lips!

    2. The argument you make in your post is in bad faith, and you know it.

      1. Except that it’s not.

      2. This particular case may not be a strong example, but (as another poster serenaded us) we have a long list of cases with similarly contorted and difficult reasoning, each of which returns the same consistent result, and a claimed rationale for that result.

        How is that facially bad faith to claim that this is another example in a pattern?

        I’d agree that if this were the only example that would be a stretched claim for the underlying cause…. but it’s not, there are many examples, including (now former) court members explicitly saying that was their intent.

        1. Exactly. Of all the infuriating tactics the left uses, that conservatives are not allowed to say that liberals are acting in bad faith is the most annoying.

    3. Nail. Head. You.

      All of the arguments against properly applying the Second Amendment boils down to “BECAUSE GUNS.” That’s the extent of their logical arguments. Nothing more.

      1. Exactly. If applied to other Constitutional rights, the 4th Amendment would only protect against unreasonable searches and seizures as long as the government didn’t have a “good reason,” that they would get to determine in its sole discretion.

  3. But only the people have the right to keep and bear arms. It’s a right of the people. And only permanent legal residents, possibly only citizens, are members of the people.

    By the same logic, the 9th Circuit ought to say that aliens have the right to other citizenship rights like the right to vote. After all, the right to vote is covered by equal protection (Baker v. Carr), equal protection applies regardless of citizenship status, and voila!

    1. Nice try although the Constitution makes it quite clear that only US citizens shall vote in federal elections. I would also note that the 14A would then make it applicable to the States whereby only US citizens shall vote in State elections.

  4. “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.”

    The terminology you use in that quote provides the conclusion you reach. You miss the comparison by writing “which bans gun possession even by people who are indeed law abiding and responsible.” But that’s not entirely complete. The statute bans gun possession by different classes of non-citizens, as opposed to people.

    In the Torres opinion the court writes, “Heller tells us that the core of the Second Amendment is the right of law-abiding, responsible citizens to use arms in defense of hearth and home.'” In Chovan the core Second Amendment right was not implicated because the statute was directed at those with criminal convictions and the defendant was not a law-abiding, responsible citizen. The proximity between the statutory prohibition and core of the right was therefore not close enough to evoke strict scrutiny. In Torres the core Second Amendment right was not implicated because the statute applied to those who were in the U.S. illegally, or unlawfully. The court stops there rather than connecting the prohibition of the statute back to the core right, as it did for the Chovan example. On my reading, the statute, directed at those here illegally or unlawfully, could be said to not implicate the core Second Amendment right because the individual, being here illegally, is not a law abiding, responsible citizen. This seems to be the same connection you make in your argument. But, it could just as easily not implicate the core right because the individual, being here illegally, is not a law abiding, responsible citizen. In the case of the latter, then a statute directed at an alien here lawfully could be analogized to Torres on the grounds that, being an alien admitted under a nonimmigrant visa, they are also not a law abiding, responsible citizen. It does, however, seem pretty clear that both Torrez and Singh are addressing cases where the firearm prohibition is directed at non-citizens, and the core Second Amendment right, as stated in Heller clearly references citizens.

    In sum, while one was here illegally and the other here legally, both Singh and Azano are still non-citizens. The statute prohibits firearms for non-citizens, with certain exceptions for hunting and sportsmanship. And, a component of the Second Amendment core is that it protects citizens.

    1. Any argument that stems from the 2nd Amendment protecting a “core right” is already bogus, as neither the 2nd Amendment itself nor Heller limits the Constitutional protects to any “core right.” Rather, Scalia wrote that lawful self-defense is at the core of the 2nd Amendment. Lawful self-defense is not limited to citizens.

      Second, the 2nd Amendment says “the people,” not “the citizens.” If the 2nd Amendment doesn’t apply to non-citizens, then neither does the 1st, 4th, 5th, or 6th, all of which refer to “people” or “persons.”

      The decision was made in bad faith, as is your argument defending it.

      1. It says “the People”, not “people”. While “people” are just “people”, “the People” is a term of art, which is to say it has a particular meaning distinct from just “people”.

        Heller held that it, “refers to all members of the political community”.

        Verdugo-Urquidez held that it refers to “persons who are part of a national community”.

        In either case, you need more of a connection to the US than just being physically present here, to be part of “the People”.

        1. It can also be linked to “We the People” in the preamble, being those from whom the government’s authority derives (citizens and nationals)

          But RestoreWesternHegemony is correct in noting that the concept seems to be applied inconsistently, both in the writing of the constitution and in subsequent interpretations

        2. Perhaps, but I don’t see any principled way to say that the protection doesn’t apply to people who are just physically present here for the 2nd Amendment, but does for all of the others.

          1. So it applies to an invading army then too, right?

            Or maybe “the People” refers to all people who are members of the body politic, which necessarily includes citizens, immigrants who are not yet citizens, and those peacefully admitted to the USA.

            You may think, “but wait, there’s no text about being peacefully admitted!” This is only partly true – there are multiple (not exclusive) categories described in the constitution, but the ones pertinent here are felons and insurrectionists, oath of whom can have their rights curtailed. An invading army falls into the latter category, while a peaceful visitor does not. A felon is trickier, but there’s a partial overlap with the concept of “outlaw” from the founding era – someone who was outside of the protection of the law, and could be legally murdered by anyone at any time. The best way to see this in the US is to look at all early felonies – each were punishable by death. So when the constitution allows Congress to pass laws
            stripping them of rights, what it’s really talking about is a form of clemency – people who were subject to execution could have a statutory reduction in their execution and merely be stripped of certain rights instead. This doesn’t apply to the peaceful visitor either.

            1. I don’t think it should apply automatically to anyone who is not a citizen. But I also think that should be true of the rest of the Constitution.

        3. It says “the People”, not “people”. While “people” are just “people”, “the People” is a term of art, which is to say it has a particular meaning distinct from just “people”.

          Where do you get “People” from? The transcription at the National Archives (https://www.archives.gov/founding-docs/bill-of-rights-transcript) has “people”, as does the text quoted in Heller.

          1. I’ll give you a hint: it’s right under the tailbone.

            1. They key part is the “the”, rather than the capital P. You wouldn’t use “the” for just people, using it indicates “people” is a particular group.

      2. Second, the 2nd Amendment says “the people,” not “the citizens.” If the 2nd Amendment doesn’t apply to non-citizens, then neither does the 1st, 4th, 5th, or 6th, all of which refer to “people” or “persons.

        The fifth and sixth amendments don’t talk about rights of “the people”. The fifth says that “no person” shall be subjected to certain things, and the sixth amendment refers to the rights of “the accused” in a criminal case, which seem (especially in the latter case) to plainly encompass non-citizens.

        The first amendment and fourth amendments do refer to some things as a right of the people (the right to assemble and to petition in the first amendment, and the right against unreasonable searches and seizures in the fourth), but they also do not limit other parts (the right to free exercise, free speech, and freedom of the press, and the warrant requirements) to rights of the people.

        1. They are definitely “persons” whole on US territory (and also “parties” for 13th Amendment purposes, and also “the accused” for 5th Amendment purposes). But they are not part of “the people.” And that’s consistent with the cases. Aliens can be denied entry because of their political views, ICE can search and seize them without the usual warrant requirements, Congress can prohibit judicial review of immigration matters. etc. etc. etc. why do you think this is so?

          Conflating “the people” and “person” is a big mistake. Every phrase means something different and has different applicability. Roe v.Wade made that point very clear. U.S. V. Verdugo-Urquidez covered the definition of “the people” and discussed all the provisions in the constitution where the term is found, much as Roe v. Wade did with the word “person.” (Johnson v. Eisentrager did the same many years earlier regarding the term “person” and extraterritorial aliens.) Their logic was similar.

        2. I don’t think that’s a useful distinction.

  5. “. . . then the same could likewise easily apply to restraints on law-abiding Americans as well as to those on law-abiding visitors.”

    WHOA!

    That slope got awful slippery all of a sudden. . . .

    1. That’s just like saying -it’s exactly like saying – that if you exclude fetuses from constitutional protection, you could just as easily exclude those born.

      I don’t think the courts have ever bought this slippery-slope argument. Even judges who think Roe v. wade was wrong and have no constitutional problem with bans on abortion don’t think the constitution requires such a ban in order to protect the liberties of born persons. So I don’t think these sorts of slippery-slope arguments have any traction. The distinctions between citizen and alien, and between territorial and extra-territorial, are as sharp and as textual as the one between born and unborn.

  6. “And, a component of the Second Amendment core is that it protects citizens.”

    I can see an argument (not that I necessarily agree with it) that the Second Amendment’s protection of “the right of THE PEOPLE to keep and bear arms” might be limited to citizens. But a consistent application of such a construction would compel the conclusion that the First Amendment “the right of the PEOPLE to peaceably assemble”), the Fourth Amendment (“the right of the PEOPLE to be secure in their homes, . . .”), and arguably the due process and equal protection clauses of the Fourteenth Amendment are also so limited to citizens. But the Supreme Court has never imposed a citizenship condition on the protection of those rights. So, unless you can argue that Second Amendment rights are somehow sui generis, imposing a citizenship condition on the right to keep and bear arms is inconsistent with long established precedent.

    1. There was not the fear that the government would confiscate arms so as to leave the people defenseless to bears, indians, and bandits. But there was the very legitimate concern that governments attempting to oppress its people would confiscate arms to leave the people defenseless to the military, and police. An armed citizenry presents a possible pushback to government overreach.
      I’m not certain that non-americans/non-citizens should possess the means to overthrow government; too much like having a foreign standing army encamped in our back yard.

  7. I don’t think there’s a good argument to exclude lawful permanent residents from possessing firearms based on the text of the US Constitution (which says “the right of the people” and mirrors the Fourth Amendment). That being said, I also don’t think there’s a good argument to exclude even aliens present without inspection and admission or parole from possessing firearms based on the text of the US Constitution – especially since the language mirrors that of the Fourth Amendment where the US Constitution treats all immigrants (and citizens) equally.

  8. Do you think these liberal judges would be willing to hold that non-citizens are not entitled to the lofty privileges of citizenship in the right to kill fetuses or have anal sex?

  9. […] Mexican citizen (with U.S. citizen wife and kids) seeks to develop San Diego waterfront, contributes to local elected officials. Which is illegal. Does it violate foreign nationals’ First Amendment rights to bar them from contributing to political campaigns? Ninth Circuit: No. Nor does it violate the Second Amendment to bar them from possessing firearms. (More on that from Eugene Volokh.) […]

  10. The reason we needed gun rights that the state could not revoke at the time of the Amendments was so that the government could not disarm the citizenry to prevent the second American Revolution.
    It is for precisely that reason that aliens, whether legal or not, should be severely restricted in gun possession; because millions of people from other countries should not have the means of making an armed resistance to the US government.

    1. Millions of people from other countries already can; that’s how militaries work.

      If you think any nation could conceivably put millions of people legally possessing arms in the US and pose a threat to the still greater number of citizens who bear arms and the military, we have bigger problems than whether those arms are legal or not.

  11. […] Mexican citizen (with U.S. citizen wife and kids) seeks to develop San Diego waterfront, contributes to local elected officials. Which is illegal. Does it violate foreign nationals’ First Amendment rights to bar them from contributing to political campaigns? Ninth Circuit: No. Nor does it violate the Second Amendment to bar them from possessing firearms. (More on that from Eugene Volokh.) […]

  12. […] Mexican citizen (with U.S. citizen wife and kids) seeks to develop San Diego waterfront, contributes to local elected officials. Which is illegal. Does it violate foreign nationals’ First Amendment rights to bar them from contributing to political campaigns? Ninth Circuit: No. Nor does it violate the Second Amendment to bar them from possessing firearms. (More on that from Eugene Volokh.) […]

  13. […] Mexican citizen (with U.S. citizen wife and kids) seeks to develop San Diego waterfront, contributes to local elected officials. Which is illegal. Does it violate foreign nationals’ First Amendment rights to bar them from contributing to political campaigns? Ninth Circuit: No. Nor does it violate the Second Amendment to bar them from possessing firearms. (More on that from Eugene Volokh.) […]

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