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Illegal Immigrants Don't Have Second Amendment Rights

By Robyn Hagan Cain on December 20, 2012 | Last updated on March 21, 2019

Illegal immigrants don't have a right to bear arms, according to a recent Fourth Circuit decision.

The Richmond-based appellate court sided with its sister circuits last week, finding that Second Amendment rights are reserved for those who abide by the law.

Immigration and Customs Enforcement agents recovered a .22 caliber Marlin rifle, a 9 mm Hi-Point model C pistol, and ammunition during a consensual search of Nicolas Carpio-Leon's home in South Carolina. Carpio-Leon and his wife had lived in Orangeburg, South Carolina, for 13 years and had 3 children, all of whom were born in the U.S. He had no prior criminal record, and he had filed income tax returns. The guns found in his home were types one would use for self-protection. He conceded that was in the United States illegally and that he had used a false social security number to obtain a driver's license.

After Carpio-Leon -- a citizen of Mexico -- was indicted for possessing firearms while being "illegally or unlawfully in the United States," he filed a motion to dismiss the charge, contending that the statute violated his rights under the Second and Fifth Amendments to the U.S. Constitution. The district court denied Carpio-Leon's motion, so he pleaded guilty to that charge, reserving the right to appeal the district court's constitutionality conclusion.

The Fourth Circuit Court of Appeals concluded that the statute was constitutional, and affirmed the district court.

The appellate court concluded that the scope of the Second Amendment does not extend to provide protection to illegal aliens, because illegal aliens are not law-abiding members of the political community, and aliens who have entered the U.S. unlawfully have no more rights under the Second Amendment than do aliens outside the U.S. seeking admittance. The Fourth Circuit also reasoned that prohibiting illegal aliens, as a class, from possessing firearms is rationally-related to Congress' legitimate interest in public safety.

In upholding the district court's decision, the appellate court noted that the Fifth, Eighth, and Tenth Circuits, however, had upheld the provision in the face of Second Amendment challenges; the Fourth Circuit found no court of appeals decision that had found the statute unconstitutional.

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