On the surface, a federal appeals court’s decision in United States v. Meza-Rodriguez concerns a fairly narrow issue — whether “unauthorized non-U.S. citizens within our borders” enjoy Second Amendment gun rights. Should the Supreme Court ultimately conclude that undocumented immigrants do not enjoy these rights, however, that decision could severely harm their ability to remain free from harassment by police. Hidden just one level below the surface in Meza-Rodriguez is the question of whether “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures,” which is protected by the Constitution’s Fourth Amendment, applies to undocumented immigrants at all.
Like the Fourth Amendment, the Second Amendment refers to a right that belongs to “the people” — “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.” In Meza-Rodriguez, the Justice Department argued that an undocumented immigrant charged with violating a federal law forbidding him from possessing a firearm is not part of “the people” who benefit from this Second Amendment right. Undocumented immigrants, this argument goes, are not “members of the political community,” and thus cannot be understood as part of “the people” as those words are used in the Constitution.
If this argument ultimately prevails, it will have profound ripple effects that extend far beyond the subject of guns. As mentioned above, the Fourth Amendment also refers to a right belonging to “the people,” so if that term does not include undocumented immigrants, their rights to be free from abusive police tactics could be severely curtailed. Similarly, the First Amendment refers to “the right of the people peaceably to assemble, and to petition the government for a redress of grievances.” Those rights could also potentially be stripped from undocumented immigrants if the Justice Department’s arguments prevail.
In Meza-Rodriguez, the United States Court of Appeals for the Seventh Circuit did not side with the Justice Department’s arguments, but that places them alone among the federal appeals courts that have considered this issue. As Judge Diane Wood explains in her opinion for the court, the Fourth, Fifth and Eighth Circuits have all agreed that, at least for Second Amendment purposes, undocumented immigrants are not part of “the people.” At least one of these courts, the conservative Fifth Circuit, also cast a cloud of doubt over whether the Fourth Amendment “extends to a native and citizen of another nation who entered and remained in the United States illegally.”
The fact that federal courts of appeal are divided on this question makes it very likely that it will eventually wind up in front of the Supreme Court, as the justices commonly agree to hear cases in order to resolve splits among federal circuit courts.
In casting aside the claim that undocumented immigrants categorically are not part of “the people” protected by the various parts of the Constitution, Judge Wood’s opinion relies heavily on a previous Supreme Court decision which said that “aliens receive constitutional protections when they have come within the territory of the United States and developed substantial connections with this country.” The defendant in Meza-Rodriguez lived in the United States for years, attended public schools and “developed close relationships with family members and other acquaintances” in the United States and worked in this country. According to the Seventh Circuit, that was more than enough to establish the kind of “substantial connections” to the United States necessary to bring him under the Constitution’s umbrella.
In other cases, where a state and not the federal government finds itself pitted against an undocumented immigrant, the immigrant will have another powerful argument that they can deploy against attempts to limit their constitutional rights. The Supreme Court has held that various protections in the Bill of Rights, including the Second and Fourth Amendment, are also implicit in the Fourteenth Amendment, which forbids states from depriving “any person of life, liberty, or property, without due process of law.”
The relevant language in the Fourteenth Amendment refers to “any person,” so state lawyers attempting to strip rights from undocumented immigrants are in the awkward position of claiming that immigrants who are not lawfully present in the United States are not people.
Nevertheless, the fact that three federal appeals courts disagree with the Seventh Circuit indicates that the rights of undocumented immigrants are far from secure. And, given the common language that appears in multiple amendments, a loss in a Second Amendment case could have enormous consequences for the rights of undocumented immigrants who are harassed by police.