Lawsuit Challenging Hawaii's Ban on Gun Ownership by Micronesians Who Aren't U.S. Citizens but Who Are Allowed to Live in the U.S. Long-Term

From the motion for preliminary injunction in Peter v. Lopez (D. Haw.), filed Wednesday:

Plaintiff is a long-term resident of Hawaii who legally lives in the United States pursuant to the Compact of Free Association ("COFA") the United States has with various islands nations located in the Pacific. "The Compact grants [citizens of the Federated States of Micronesia] and citizens of other compact states [Palau and the Marshall Islands] liberal opportunities to work and reside in the United States." COFA aliens "admitted to the United States under the Compacts may reside, work, and study in the United States. They do not have the status of lawful permanent residents (also known as Green Card holders) under the Immigration and Nationality Act (INA)."

Hawaii Revised Statutes § 134-2 generally bans gun ownership by non-citizens (with some exceptions), which covers COFA aliens among others:

In Fotoudis v. City & County of Honolulu (D. Haw. 2014), this Court enjoined H.R.S. § 134-2's prohibition on noncitizen's owning firearms as applied to permanent resident aliens i.e. green card holders. After the Fotoudis ruling, Hawaii maintained a ban on other noncitizen residents of Hawaii. This included U.S. Nationals from the U.S. Territory of America Samoa until a lawsuit was filed. Shortly after the filing of that lawsuit, the State entered into a stipulated injunction which compelled Hawaii to allow U.S. Nationals to own firearms. See Alanoa Nickel v. Connors (D. Haw. 2020) (stipulated injunction as to State of Hawaii's ban on U.S. Nationals owning firearms). Since then, Hawaii has updated H.R.S. § 134-2 to include U.S. Nationals and green card holders as being among those authorized to own firearms. However, Hawaii maintains a flat ban on firearm ownership for other lawfully present aliens including COFA aliens.

Plaintiffs argue the Hawaii ban violates the Second Amendment, and violates the Equal Protection Clause, which generally forbids states (though not the federal government) from discriminating against noncitizens in various ways. An excerpt from the equal protection section:

Alienage, or the state of being an alien, i.e. a non-citizen of the United States, is a suspect class that triggers strict scrutiny in equal protection claims when dealing with state law. Graham v. Richardson (1971)….

Applying strict scrutiny, denying Plaintiff the opportunity to apply for (and to obtain) a permit merely because he is a COFA alien "is not a narrowly tailored means of achieving that goal." See also Fletcher v. Haas (D. Mass. 2012) ("Although Massachusetts has an interest in regulating firearms to prevent dangerous persons from obtaining firearms … the statute here fails to distinguish between dangerous non-citizens and those non-citizens who would pose no particular threat if allowed to possess handguns."); Say v. Adams (W.D. Ky. 2008) (granting an injunction against enforcing a Kentucky law limiting the issuance of a license to carry concealed weapons to U.S. citizens, reasoning in part that "[a] blanket prohibition discriminating against aliens is not precisely draw[n] to achieve the goal of facilitating firearms purchases when there exists a nondiscriminatory way to achieve the same goals")….

Kevin O'Grady and Alan Beck represent plaintiff; Beck had also represented the plaintiff in Fotoudis (the green card holder case) and Nickel (the American Samoan case).

Comments

[John F. Carr]

One federal judge recently ruled against the federal ban on gun possession by illegal aliens. United States v. Carbajal-Flores, 20-cr-00613 (N.D. Ill. Mar. 8, 2024). That ruling is broader than one requested in the Hawaii case.

[ThePublius]

That's remarkable. Wouldn't a violation of the law that could result in a a prison sentence of a year or more render them a federally prohibited person? A second offense would do it.

"8 U.S. Code § 1325 - Improper entry by alien

(a)Improper time or place; avoidance of examination or inspection; misrepresentation and concealment of facts
Any alien who (1) enters or attempts to enter the United States at any time or place other than as designated by immigration officers, or (2) eludes examination or inspection by immigration officers, or (3) attempts to enter or obtains entry to the United States by a willfully false or misleading representation or the willful concealment of a material fact, shall, for the first commission of any such offense, be fined under title 18 or imprisoned not more than 6 months, or both, and, for a subsequent commission of any such offense, be fined under title 18, or imprisoned not more than 2 years, or both."

Try telling a Police Chief in Massachusetts during your interview for a LTC that you're in the country illegally. And if you lie, that disqualifies you, too.

[Ken Arromdee]

>Wouldn't a violation of the law that could result in a a prison sentence of a year or more render them a federally prohibited person?

I don't think the government can punish you for violation of a law without convicting you first. And a jurisdiction that's friendly enough to decide this in the first place probably isn't going to convict the illegal alien.

[ReaderY]

Under a theory connecting the individual right to keep and bear arms with a states right to have and regulate a militia, the outcome would be straightforward. Just as only weapons suitable for a militia would be covered, so only persons suitable for a militia would be. While states couldn’t exclude people as they please, nonetheless non-citizens with no duty of loyalty to the country or state are obviously unsuitable to be in the stare’s militia, and denying them the right to keep and bear arms is no different from denying them the right to vote in state elections.

Indeed, under the district court’s theory, it is hard to understand how bans on non-citizen voting could be consistent with Equal Protection. Voting is a fundamental right. So if states can’t deny non-citizens fundamental rights, what permits them to deny them the right to vote?

It is only if the 2nd Amendment is torn asunder and the militia clause is totally disconnected from the keep and bear arms clause that the argument that non-citizens have such a right even becomes plausible.

[Rossami]

At the time of the Founding, the militia consisted entirely of people who were not citizens of the United States. Many were also not citizens of the country they were rebelling against. Your assumption that non-citizens are categorically "unsuitable to be in the militia" is historically unsupported.

You are on stronger logical ground with your analogy to voting. I'm not convinced that it's a winning argument but it's better than your militia clause claim.

[Rossami]

I should probably also add that even today, being a non-citizen does not automatically make you "unsuitable" to be in the regular army. I served alongside many fine soldiers who were not citizens of the US. In fact, serving in the military has often been a favored route to citizenship throughout history and across multiple countries and citizenship traditions.

[Noscitur a sociis]

Permanent residents are also subject to the draft.

[Brett Bellmore]

"t the time of the Founding, the militia consisted entirely of people who were not citizens of the United States. "

It's worth remembering that the revolutionary war took place decades prior to ratification of the Bill of Rights. So none of that matters.

[Rossami]

I think it does matter to a claim that the Founders considered non-citizens "obviously unsuitable to be in the ... militia". They were no longer in active revolt at the time but many of them served in the militia and I seriously doubt that any of them intended to retroactively forbid their own behavior.

[Brett Bellmore]

Look, a revolutionary war CREATES the 'citizenry', there were no US citizens at the time.

[Rossami]

Yes, I know. That's part of why it undercuts Reader's claim.

[not guilty]

"Indeed, under the district court’s theory, it is hard to understand how bans on non-citizen voting could be consistent with Equal Protection. "

The linked document is not the District Court's theory. It is the Plaintiff's theory.

As for restricting voting rights to citizens, I haven't done a deep dive into the mater, but state restrictions that place a condition on the exercise of the right to vote are subject to strict scrutiny under the Equal Protection clause. See, Dunn v. Blumstein, 405 U.S. 330, 337 (1972). Assuring that elected officials are chosen only by those who bear allegiance to the United States is likely a compelling governmental interest. A means of achieving that interest less restrictive than excluding non-citizens from voting does not come readily to mind.

[Voize of Reazon]

non-citizens with no duty of loyalty to the country or state are obviously unsuitable to be in the sta[t]e’s militia

Your dismissal of their suitability for military service notwithstanding, non-citizen male residents 18-25, even illegal ones, are required to register for the draft.

[Brett Bellmore]

Yet another example of why substantive due process needs to die, and the P&I clause be revived. Voting is one of those Privileges, and per the 14th amendment, only citizens are entitled to P&I.

[cannpro]

The 14th amendment doesn’t require equality, it requires the equal “protection of the laws”, which doesn’t include voting because voting doesn’t involve anyone’s liberties or freedom. For this reason the 14th amendment doesn’t apply to voting. That’s why the reconstruction congress had to follow up with the 15th amendment, outlawing voting discrimination on account of race. If the 14th amendment applied to voting the 15th amendment wouldn’t have been necessary.

[not guilty]

"The 14th amendment doesn’t require equality, it requires the equal “protection of the laws”, which doesn’t include voting because voting doesn’t involve anyone’s liberties or freedom. For this reason the 14th amendment doesn’t apply to voting."

You think not?? The Supreme Court disagrees.

"Undoubtedly, the right of suffrage is a fundamental matter in a free and democratic society. Especially since the right to exercise the franchise in a free and unimpaired manner is preservative of other basic civil and political rights, any alleged infringement of the right of citizens to vote must be carefully and meticulously scrutinized." Reynolds v. Sims, 377 U.S. 533, 562 (1964).

SCOTUS opined in Dunn v. Blumstein, 405 U.S. 330, 336 (1972):

In decision after decision, this Court has made clear that a citizen has a constitutionally protected right to participate in elections on an equal basis with other citizens in the jurisdiction. See, e. g., Evans v. Cornman, 398 U.S. 419, 421-422, 426 (1970); Kramer v. Union Free School District, 395 U.S. 621, 626-628 (1969); Cipriano v. City of Houma, 395 U.S. 701, 706 (1969); Harper v. Virginia Board of Elections, 383 U.S. 663, 667 (1966); Carrington v. Rash, 380 U.S. 89, 93-94 (1965); Reynolds v. Sims, supra.

[Brett Bellmore]

Yeah, that's not what the authors of the 14th amendment thought, though. That's what a Court on a tear to implement the 14th amendment as THEY wanted it to function, without technically overturning Slaughterhouse, thought.

Cannpro is right: If Howard and company had thought the 14th amendment worked that way, there would have been no 15th amendment.

[JoeFromtheBronx]

There should be a way to avoid the more complicated question of the full reach of the Second Amendment & rest this on equal protection principles generally.

I also think the militia language of the 2A complicates the right of non-citizens to have arms to at least a limited degree than some other liberty interest to own arms. A militia traditionally like voting and jury service was something some sub-set of adults practiced.

Non-citizens have belonged to the militia in various degrees so it is not true only citizens are involved here even in that sense. But, it does complicate that matter to some degree.

[cannpro]

The problem with that argument is the the second amendment doesn’t apply just to the militia. As pointed out in Heller, the right to bear arms includes a right outside of service in a militia.

[Frank Drackman]

Wo-fat does not comply with the Round-eyes unconstitutional laws

[Roger S]

Citizens should have more rights than non-citizens. Especially on military matters, such as rights to gun ownership. It is bizarre to say that states cannot discriminate against aliens.

[cannpro]

Bizarre or not the 14th amendment explicitly outlaws it.

[Frank Drackman]

Until the Surpremes say it doesn't

[Absaroka]

Putting aside the constitutional arguments, what is the reasoning behind such a law?:

A)COFA people are unusually prone to criminality, and Hawaii wants to punish the whole group rather than just the bad individuals. Not a great look.
B)Hawaii just generally thinks guns are bad and wants to ban possession by every tiny slice of people it possibly can, regardless of the country's sentiment as a whole. Not a great look either.

People who generally don't think cars are a good idea aren't out trying to say immigrants can't drive if they otherwise meet the same qualifications as everyone else.

(Irony dept: I looked the firearms laws for the Marshall Islands, and they don't seem very gun friendly)

[Brett Bellmore]

Oh, it's absolutely "B".

[ThePublius]

On the voting issue and citizenship, it's my understanding that the Massachusetts constitution doesn't require citizenship to vote, only to make one's domicile in the state. Yet, there also appear to be laws requiring citizenship to vote. How are these reconciled? Can a legislature pass a law that contravenes the constitution? I think not.

In addition, I would not think that one must be a citizen to enjoy the rights in the bill of rights. One need simply be here.

For the record, I'm opposed to the federally prohibited person part of GCA '68. Penalties have increased for many offenses since GCA '68 was passed. For example, get pulled over in MA and blow a 0.08% BAL and get convicted. No accident, no property damage, no personal injury. Now you can't have a gun, only because you could have been sentenced to 2 years.