On Friday, the United States Court of Appeals for the Fourth Circuit upheld a federal law prohibiting the possession of firearms while being “illegally or unlawfully in the United States.” In doing so, they join three other circuits which also upheld the same ban. The unanimous panel included Judge Paul Niemeyer, who may be the most conservative judge on this court, and Judge Diana Gribbon Motz, who is one of the court’s most thoughtful liberals. So it appears unlikely that the growing consensus — that banning undocumented immigrants from carrying firearms does not violate the Second Amendment — will be disturbed even by the pro-gun Roberts Court.
The most significant part of the Fourth Circuit’s decision, however, isn’t its holding; it is the way that it reached that holding. Last year, the severely conservative Fifth Circuit issued an opinion suggesting that undocumented immigrants may not simply be outside the scope of the Second Amendment, but that they also cannot invoke the Fourth Amendment’s prohibition on “unreasonable searches and seizures.” Both the Second and the Fourth Amendment refer to “the right of the people” to bear arms or be free from overbearing police actions, and the Fifth Circuit reasoned that undocumented immigrants are not part of “the people.”
Friday’s decision, by contrast, largely relies on a different analysis that does not threaten immigrant’s right to be free from unlawful searches and seizures:
[W]e need not limit our analysis to the scope of the term “the people” and thereby become enmeshed in the question of whether “the people” includes illegal aliens or whether the term has the same scope in each of its constitutional uses. This is because Heller concludes, through a distinct analysis, that the core right historically protected by the Second Amendment is the right of self-defense by “‘law-abiding, responsible citizens.’” . . .
Even though the Heller Court stressed that the core right of the Second Amendment protects law-abiding members of the political community, it did not face a law prohibiting firearms possession by a particular class of persons. Nonetheless, we can employ the historical analysis it prescribed to apply its observations to this case and thus to reach the conclusion that we do—that illegal aliens do not belong to the class of law-abiding members of the political community to whom the Second Amendment gives protection.
To be sure, there is a lot not to like about the court’s core conclusion that people who enter the country illegally carry with them a taint of lawlessness sufficient to change their legal rights. Nevertheless, the Fourth Circuit’s reasoning has far fewer implications than other court decisions which suggested that police have free rein to treat undocumented immigrants however they please.