Today, the Ninth Circuit issued a published opinion in United States v. Torres, a case addressing whether 18 U.S.C. 925(g)(5)(A) violates the Second Amendment right of undocumented immigrants.
The court addressed an issue previously decided by five other circuits and deepened what is currently a 3-way split over whether undocumented immigrants have Second Amendment rights at all. The Fourth, Fifth, and Eighth Circuits have all held that there is no Second Amendment right in these circumstances. The Seventh Circuit found that undocumented aliens had such rights, and the Ninth Circuit joined the Tenth in avoiding the question by assuming such rights existed and then upholding the law under intermediate scrutiny review.
There are three problems with the court’s analysis in this case. First, it applied the test under United States v. Verdugo-Urquidez, which focused on the rights of aliens outside of the United States; second, it applied intermediate scrutiny under the Second Amendment, as opposed to strict scrutiny which typically applies when laws are based on alienage; and third, the analysis is circular and self-contradictory.
First, despite refusing the address the underlying question of whether the Second Amendment applied to undocumented immigrants, the court went through an analysis under Verdugo-Urquidez. While it is true that Verdugo-Urquidez examined the meaning of the term “the people” in the Fourth Amendment, a phrase which is repeated in the Second Amendment, the Supreme Court was examining the question in the context of the extraterritorial application of the Constitution. The Supreme Court has previously found that undocumented immigrants have certain rights under the Constitution (see, e.g. Plyler v. Doe, 457 U.S. 202 (1982)). Typically, presence within the United States has been enough to extend rights to anyone within our territory.
Second, the Ninth Circuit upheld the restriction as consistent with intermediate scrutiny, providing a reasonable fit designed to protect an important government interest. Here, the Court noted that the Supreme Court had not indicated what level of scrutiny was applicable to claims the Second Amendment was being burdened, but noted the near unanimity of courts in applying that level of scrutiny. However, the court ignored the other half of the equation. 18 USC 922(g)(5)(A) makes it a crime for an alien who is illegally in the United States to possess a firearm. Statutes that target individuals based on their alienage are typically subjected to strict scrutiny, the level of scrutiny sought by Torres here. See e.g. Graham v. Richardson, 403 U.S. 365 (1971). To be fair, Graham dealt with legal aliens and state laws.
Finally, the logic of the Court is circular and self-contradictory. The court assumes for purposes of the decision that undocumented aliens have Second Amendment rights, but upheld 18 USC 922(g)(5)(A)’s total ban on such aliens possessing firearms. It is hard to see how aliens can have a right to possess firearms under the Second Amendment if it is a permissible restriction, consistent with that Amendment, to totally deny them the ability to possess said firearms. The end result is the same as denying the right in the first place. It is impossible to imagine what content the right has if it does not prevent the Government from enacting 922(g)(5)(A).