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No Right to Bear Arms: Illegal Immigrants Are Not 'The People'

By Robyn Hagan Cain on May 16, 2012 | Last updated on March 21, 2019

In District of Columbia v. Heller, the Supreme Court held that the Second Amendment protects an individual's right to possess a firearm, unconnected with service in a militia, and to use that firearm for traditionally lawful purposes, like self-defense within the home. That right, according to the Tenth Circuit Court of Appeals, is "qualified by what one might call the 'who,' 'what, 'where,' 'when,' and 'why.'"

The "who," for example, does not include illegal immigrants.

Last week, the Tenth Circuit held that a federal statute that criminalizes “being an illegal alien in possession of firearms transported or shipped in interstate commerce” is constitutional.

Appellant Emmanuel Huitron-Guizar was born in Mexico and brought to Wyoming when he was 3-years-old. When he was 24, officers executed a warrant on his home and discovered three firearms. They learned from his sister that he was not a U.S. citizen. Huitron-Guizar was charged as an illegal alien in possession of firearms.

Huitron-Guizar challenged the statute, arguing that it violates the Equal Protection Clause. Huitron-Guizar claimed that Congress does not have power to “discriminate against non-citizens by not allowing them to have all the constitutional rights that United States citizens have.”

The Tenth Circuit Court of Appeals responded that Huitron-Guizar misunderstood the law, reasoning:

  • An unlawfully present alien has fewer rights than one lawfully in the U.S.
  • Federal statutes that classify based on alienage need only to be supported by a rational basis.
  • The Supreme Court has “firmly and repeatedly endorsed the proposition that Congress may make rules as to aliens that would be unacceptable if applied to citizens.”
  • Equal protection requires that similarly situated individuals be treated similarly; aliens, let alone those unlawfully here, are not situated like citizens.

Here, Huitron-Guizar could not meet his burden of showing that there is no rational basis for the statute.

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.” Do you agree with the Tenth Circuit Court of Appeals that illegal immigrants don’t count among “the people?”

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