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Non-Citizens Have a Right to Bear Arms -- With 1 Major Catch

By Casey C. Sullivan, Esq. | Last updated on

Non-citizens have a right to bear arms, even if they are in the country illegally, the Seventh Circuit ruled late in August. The ruling overturns a district court finding that the Second Amendment doesn't protect unauthorized aliens. In so holding, the Seventh created a split with the Fourth, Fifth, and Eighth Circuits, all of which have ruled otherwise.

But, there's a catch. While the right to bear arms extends to unauthorized non-citizens in the U.S., the Second Amendment also allows for limits. That includes a federal law banning unauthorized immigrants and nonimmigrant visa holders from possessing firearms, the court concluded.

Deported With Little Chance of Reentry

The case arose after Mariano Meza-Rodriguez was arrested in 2013 with a single .22 caliber cartridge. Meza-Rodriguez was born in Mexico and brought to the United States when he was four years old. Meza-Rodriguez never left the country, but he also never "regularized" his immigration status during his 20 years in the United States. He was arrested after a particularly rough night in Milwaukee, after he pulled a gun in one bar and got into a brawl in another.

After spending most of his life in the United States, Meza-Rodriguez was deported to Mexico. He was also indicted under 18 U.S.C. 922(g)(5) for illegally possessing ammunition. That statute forbids aliens unlawfully in the United States and nonimmigrant visa holders from possessing arms or ammunition. Since that crime is a felony, Meza-Rodriguez would never be allowed to reenter the country.

"The People" Means Everyone

Meza-Rodriguez appealed, arguing that the statute violated his Second Amendment rights. The Second Amendment affords the right to keep and bear arms to "the people." In the view of the government, district court and several sister circuits, the people did not include unauthorized aliens. Indeed, the government argued that Meza-Rodriguez's status as part of the people should be rejected because of his "unsavory traits" such as brushes with the law and failure to file tax returns.

The Seventh Circuit rejected those arguments. "The people" in the Second Amendment is everyone with a substantial connection to the country, regardless of their immigration status, regardless of whether they are jerks. In reaching the conclusion, the court analogized the Second Amendment to the First and Fourth, both of which apply to non-citizens. "In the post-Heller world," the court wrote, "where it is now clear that the Second Amendment right to bear arms is no second-class entitlement, we see no principled way" to exclude noncitizens from its protections.

But Don't Get Too Excited

Unfortunately for Meza-Rodriguez, even a finding that he was protected by the Second Amendment was not enough to undo his conviction. The right to bear arms is not unlimited, the court explained; the right is subject to reasonable regulations. Applying intermediate scrutiny to the federal ban on arms possession by unauthorized aliens, the court found the law to be reasonable. Since unauthorized aliens "often live largely outside the formal system" and are "harder to trace and more likely to assume a false identity," the government may rationally limit their access to firearms.

Thus, the Seventh Circuit leaves Meza-Rodriguez with the right to bear arms, but without the ability to exorcise that right under federal law.

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