Last June, the U.S. Court of Appeals for the Fifth Circuit held, wrongly, that the Second Amendment does not apply to undocumented immigrants. Last week, in a single paragraph order, the Eighth Circuit agreed. As ThinkProgress explained when the Fifth Circuit opinion was handed down, this decision isn’t just wrong, it is disastrously so. Indeed, if allowed to stand, it could strip all undocumented immigrants of their constitutional right to be free from unlawful searches and seizures.
Several constitutional provisions refer to rights that belong to “the people.” The Second Amendment refers to “the right of the people to keep and bear Arms.” And the Fourth Amendment provides that “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.” According to the Fifth Circuit’s reasoning, which was embraced last week by the Eighth Circuit, undocumented immigrants enjoy neither right because they are not part of “the people”:
[T]he Court noted that “in all six other provisions of the Constitution that mention ‘the people,’ the term unambiguously refers to all members of the political community, not an unspecified subset.” [...] Illegal aliens are not “law-abiding citizens” or “members of the political community,” and aliens who enter or remain in this country illegally and without authorization are not Americans as that word is commonly understood.
Prior to its decision in Heller, the Supreme Court interpreted the meaning of the phrase “the people” in the context of the Fourth Amendment and indicated that the same analysis would extend to the text of the Second Amendment…but neither this court nor the Supreme Court has held that the Fourth Amendment extends to a native and citizen of another nation who entered and remained in the United States illegally.
This reasoning isn’t just wrong, it is obviously wrong. Even if undocumented people don’t count as part of “the people,” the Supreme Court held in Mapp v. Ohio that the Constitution’s guarantee that no “person” may be denied liberty without due process of law includes the right to be free from illegal searches and seizures. More recently, in McDonald v. Chicago, the Supreme Court held that the same guarantee of due process to all “person[s]” also includes the right to bear arms. Last time we checked, undocumented immigrants are people.
It’s deeply disturbing that two federal appeals courts have now embraced this clearly erroneous legal argument. Under this interpretation of the law, it’s not clear that anything prevents police from breaking into an undocumented persons’ home at any time, or from simply arresting them despite no evidence that the person committed a crime.