Aliens May be Armed

Second Amendment for all

Undocumented immigrants may have a right to bear arms, according to an August decision written by Judge Diane Wood for a three-judge panel in the 7th Circuit Court of Appeals.

Non-citizen Mariano Meza-Rodriguez was arrested after he got into a bar fight with a .22 caliber cartridge on him. That violated a federal statute that makes it illegal for an alien to "possess in or affecting commerce, any firearm or ammunition."

The Supreme Court's Heller decision doesn't address illegal immigrants, and at least three other appeals circuits have said they have no Second Amendment rights. The 7th Circuit disagreed, saying the "people" of the Second Amendment are the same "people" in the Fourth Amendment. Search and seizure protections have been found to apply to aliens with "substantial ties" to the U.S., and the court ruled that Meza-Rodriguez (having lived here for over 20 years) qualifies.

But it was still OK to convict and deport him. The Second Amendment is not absolute and, Judge Wood wrote, "Congress's interest in prohibiting persons who are difficult to track and who have an interest in eluding law enforcement is strong enough" to uphold the conviction.

Since an undocumented immigrant might be "difficult to track" and have "an interest in eluding law enforcement" almost by definition, this distinction may not mean much in practice. Still, the decision creates a circuit court split ripe for Supreme Court consideration in the future.