At the Blog of the Duke Center for Firearms Law, Thomas Moy: Western District of Texas Judge Strikes Down the Alien-in-Possession Ban. From the introduction:
On December 11, the Western District of Texas struck down 18 U.S.C. § 922(g)(5), the illegal alien firearms prohibitor, in United States v. Sing-Ledezma. The case is the latest of many decisions invalidating various prohibited-person restrictions in the wake of Bruen (chief among them United States v. Rahimi, which the Supreme Court is currently considering). Section 922(g)(5) states in relevant part that “[i]t shall be unlawful for any person . . . who, being an alien is illegally or unlawfully in the United States . . . to possess in or affecting commerce, any firearm or ammunition.” Prior to Sing-Ledezma, every federal district and circuit court to consider the prohibition under Bruen upheld the statute. In United States v. Sitladeen, the Eight Circuit, thus far the only court of appeals to address the issue, upheld Section 922(g)(5) on the grounds that illegal aliens are not part of “the people” with Second Amendment rights and thus did not qualify for its protections. Sing-Ledezma reached a contrary result due primarily to two major differences in how the court applied Bruen.
First, Bruen “step one” directs courts to determine if the defendant’s “conduct” falls within the purview of the Second Amendment. Courts have struggled with what exactly the relevant “conduct” is for purposes of the historical-analogical test. In Sing-Ledezma, the government argued that the conduct at issue was being an “unlawfully present alien in possession of a firearm.” This status-based distinction had been utilized previously to uphold the statute, including in Sitladeen. Here, however, the court rejected such an argument. Instead, citing Fifth Circuit precedent, it determined that any attempt to expand the scope of the “conduct” beyond mere possession of a firearm was “unavailing.” Thus, Sing-Ledezma found the conduct “plainly protected by the Second Amendment.”
Second, the way the Sing-Ledezma court conducted its historical analysis differed greatly from other courts. …
And in conclusion:
Irrespective of the historical analysis, the court’s reasoning at the predicate step, I think, has a gaping hole. Much of the decision is based upon an assumption that concerns about foreigners stepping onto American soil are not new, and, therefore, the absence of similar historical laws renders (g)(5) unconstitutional. Indeed, that assumption is what framed the court’s analysis of the government’s proffered historical analogues. This assumption is made despite the fact that government regulation of immigration, much less the notion of illegal immigration, did not exist when the Second Amendment was ratified. The court acknowledged as much and even commented that, “when the Second Amendment was ratified in 1791, there had been and continued to be a large influx of foreigners coming to the United States without having been previously vetted and without having their belongings searched or weapons seized.” Immigration is therefore unlike domestic violence, which was undoubtedly a societal problem that the American people faced at the Founding. The lack of a codified immigration system, then, indicates that Americans at the Founding did not consider immigration, specifically the vetting of immigrants, to be “a general societal problem.” The court instead seemed to assume a general continuity of concern about foreigners entering the United States, a reading I don’t fully grasp.
This reasoning, of course, also presumes that Founding-era history best informs our understanding of the Second Amendment. Justice Thomas suggested in Bruen that Reconstruction-era history could also aid in interpreting the Second Amendment. Using this later time period as a reference might change the analysis. For example, the Page Act of 1875 restricted the immigration of Asian, mostly Chinese, women who were considered “undesirable.” The Chinese Exclusion Act followed a few years later, in 1882. These laws could be stronger evidence of a general societal concern surrounding immigration, lending more credence to the absence of firearm-specific regulation. The government has appealed Sing-Ledezma to the Fifth Circuit, so we haven’t yet seen the end of the case.
(Thanks the Alan Beck for the pointer.)
It's not my area but I find it textually plausible that aliens who are not lawfully admitted are not part of the "people" protected by the Second Amendment. (That might uncomfortably suggest, though, that similarly they are not part of the "people" protected by the Fourth Amendment either).
Posted at 6:01 AM