The categorical ban that prevents illegal aliens from possessing firearms doesn’t violate the Second Amendment, a federal appeals court held.
In the case, the defendant, Javier Perez, appealed from a conviction for possessing a firearm and ammunition while unlawfully present in the United States. He had fired a gun to break up a gang fight and was charged with violating the federal ban.
Perez was born in rural Mexico in 1989 and entered the U.S. without permission at age 13, according to the court. From entry to arrest in 2018, he worked for himself as a carpenter. As a young man, he was involved with the Ninos Malos gang but said he ceased being a member in 2012.
On July 23, 2016, Perez attended a barbeque in Brooklyn, New York, when a violent fight broke out down the street. Several young men holding bats and machetes were attacking a member of a rival gang. Perez broke up the fight by borrowing a gun from an acquaintance and firing several shots into the air, after which he returned the weapon to its owner.
Days later, the New York Police Department obtained a video showing the incident and, following an investigation, concluded that the shooter was Perez. Perez was arrested by police for a separate incident in April 2017, and he admitted discharging the gun in 2016, at which point he was unlawfully present in the United States.
He challenged the federal statute under which he was convicted, known as 18 U.S.C. § 922(g)(5), arguing that it violates the Second Amendment right to bear arms by imposing a categorical bar on his ability to possess a firearm or ammunition, according to the court.
The Second Amendment states, “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” Perez argued that “the people” includes aliens like him who are present unlawfully but have developed substantial connections to the country.
He was convicted and sentenced to 20 months of imprisonment, to be followed by three years of supervised release.
“Assuming without deciding that, even as an undocumented alien, he is entitled to Second Amendment protection, we hold that 18 U.S.C. § 922(g)(5), as applied to Perez” withstands what is called intermediate scrutiny and affirmed his conviction, the court ruled.
The standard of intermediate scrutiny is a middle ground between strict scrutiny, the highest level of judicial review, and a lower, more relaxed “rational basis” standard.
“To withstand intermediate scrutiny, the law must be ‘substantially related to the achievement of an important governmental interest,’” the court held.
“We have observed that regulation of firearms ‘has always been more robust’ than governmental measures affecting other constitutional rights. Thus, our only role is to ensure that Congress formulated the challenged regulation ‘based on substantial evidence.’”
“Perez conceded that “public safety in the context of using firearms is an important governmental objective. We turn our attention, then, to whether § 922(g)(5) bears a substantial relation to the achievement of that objective and conclude that it does.”
In other words, Perez might be entitled to Second Amendment protections, but the government’s interest in public safety allows it to override those protections.
Writing for the panel, Judge John M. Walker acknowledged that the court failed to find whether the long-term illegal alien Perez has a right to keep and bear arms.
“Our court has declined to address the extent to which the Second Amendment protects conduct or individuals beyond the core guarantee of a law-abiding person’s right to keep firearms for self defense.”
Walker wrote that the Supreme Court’s landmark 2008 decision in District of Columbia v. Heller, which protects an individual’s right to keep and bear arms for self-defense, created a “vast terra incognita” as to what conduct or characteristics disqualify a person from the Second Amendment’s protections.
“Our practice in those cases has been to assume that a given firearm restriction implicates rights guaranteed by the Second Amendment and determine whether the restriction would nonetheless withstand the appropriate level of scrutiny. We see no reason to abandon that approach here.”
The Supreme Court may have an opportunity to clarify some of the issues involved in gun ownership rights when it hears New York State Rifle & Pistol Association v. Corlett in the fall term. The issue is whether New York state’s denial of litigants’ applications for concealed-carry licenses for self-defense violates the Second Amendment.
It wasn’t clear at press time whether Perez would appeal the decision.
