Do undocumented immigrants have Second Amendment rights? Can they be categorically banned from possessing firearms? In this Contribution, Kathy Buckalew (’19) examines the constitutionality of a categorical ban on possession of firearms and ammunition by undocumented immigrants. The Contribution argues that undocumented immigrants living in the United States have the same individual right to keep and bear arms for purposes of self-defense as do United States citizens. Therefore, undocumented immigrants cannot be categorically prohibited from possessing firearms absent an affirmative showing by the government that such a prohibition is substantially related to the achievement of an important government interest.
The Supreme Court of the United States has held that the Second Amendment confers a fundamental, individual right to keep and bear arms. 2 However, since the Court’s landmark decisions in District of Columbia v. Heller in 2008 and McDonald v. City of Chicago in 2010, questions have emerged regarding the scope of this newly recognized individual right. Who possesses the right? Does the right extend beyond the home? Does it exist for purposes other than self-defense? Under what circumstances can individuals be prohibited from exercising the right?
This Contribution will argue that the Second Amendment extends to undocumented immigrants 3 —at least to those who have a “substantial connection” to the United States, per the Supreme Court’s decision in United States v. Verdugo-Urquidez. 4 Because undocumented immigrants are protected by the Second Amendment, restrictions on their ability to keep and bear arms are subject to certain constraints. A categorical ban on firearm possession by undocumented immigrants would be subject to heightened scrutiny, meaning that the ban must, at minimum, be substantially related to an important government interest in order to be constitutional. If such a ban were enacted to reduce gun violence, it would have to be supported by evidence that undocumented immigrants actually engage in such violence, or else it would fail heightened scrutiny and thus be unconstitutional.
The Second Amendment to the United States Constitution provides: “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.” 5 Based on this language, an individual has the right to keep and bear arms if he or she is part of “the people,” as that phrase is used in the amendment. 6
The plain meaning of the phrase “the people” indicates that it encompasses undocumented immigrants living in the United States. In common parlance, “people” is simply a plural form of “person.” This is also the primary dictionary definition of “people;” for instance, the first definition of “people” listed in Black’s Law Dictionary is “men, women, and children generally; persons.” 7 Undocumented immigrants certainly fall within this definition. Indeed, the Supreme Court has recognized that undocumented immigrants are “persons” under the Constitution. 8 Therefore, under the Second Amendment’s plain language, undocumented immigrants are included in the amendment’s protection of the right to keep and bear arms.
The Supreme Court’s jurisprudence also indicates that at least some undocumented immigrants have Second Amendment rights. In United States v. Verdugo-Urquidez, the Supreme Court recognized that individuals who “have come within the territory of the United States and developed substantial connections with th[e] country” are entitled to constitutional protections. 9 The Court held that in light of this, “the people,” as used in the Bill of Rights, encompasses undocumented immigrants who “are part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community.” 10 The Court utilized this definition of “the people” again in District of Columbia v. Heller, this time specifically in the context of the Second Amendment. 11 Undocumented immigrants who meet this substantial connection test therefore have Second Amendment rights under the Supreme Court’s jurisprudence.
Three circuit courts have held that undocumented immigrants do not have Second Amendment rights. 12 These decisions misunderstood Heller. Importantly, the Heller Court was not presented with the issue of whether undocumented immigrants have Second Amendment rights—the issue presented in the case involved a general ban on handgun possession in the home by citizens of the United States. 13 Moreover, the Heller Court found that “the people” has a consistent meaning throughout the Bill of Rights. 14 The Court relied on the use of “the people” in the First and Fourth Amendments to find that the phrase—and therefore the Second Amendment—confers an individual right rather than a collective right. In so finding, the Heller Court went so far as to approvingly quote the substantial connection test from Verdugo-Urquidez. 15 It would therefore be nonsensical to read Heller as overruling that test. And, given the Heller Court’s emphasis on consistent interpretation of the “people,” such a reading would require also depriving undocumented immigrants of their First and Fourth Amendment rights, since those amendments also use the phrase “the people.” There is no indication that the Heller Court intended such a broad deprivation of rights.
The Supreme Court has long held that undocumented immigrants living in the United States have many rights under the constitution. Not only do those with a substantial connection to the United States have Fourth Amendment rights under Verdugo-Urquidez, but undocumented immigrants also have rights under the First Amendment, Fifth Amendment, Sixth Amendment, and Fourteenth Amendment. 16 Recognizing that the Second Amendment extends to undocumented immigrants living in the United States is therefore consistent with the Supreme Court’s jurisprudence on other rights enshrined in the Constitution.
Granting the right to keep and bear arms to undocumented immigrants living in the United States is also good policy. Undocumented immigrants are no less likely than United States citizens to have the need to defend themselves in a confrontation. In fact, undocumented immigrants may be even more likely than citizens to face a situation requiring self-defense. Undocumented immigrants are often the targets of violence and, unlike citizens, may not be able or willing to seek help from law enforcement due to a legitimate fear of being detained or removed from the United States. 17 In recognition of this, it is essential that undocumented immigrants be covered by the Second Amendment so that they may protect themselves, their families, and their homes from those who would do them harm.
Because undocumented immigrants—at least those with a substantial connection to the United States—are entitled to keep and bear arms under the Second Amendment, restrictions on their possession of firearms are subject to constitutional means-end scrutiny. Certain restrictions are certainly constitutional. 18 A categorical ban on firearm possession by undocumented immigrants, however, is not.
The Supreme Court in Heller found that restrictions on the Second Amendment are subject to heightened scrutiny. 19 Although the Supreme Court declined to specify a particular level of heightened scrutiny, circuit courts have analyzed categorical bans on firearm possession by undocumented immigrants using intermediate scrutiny. 20 Under intermediate scrutiny, a government action restricting a constitutional right must be substantially related to an important government interest in order to be found lawful by a court. 21 The government bears the burden to prove that its action is sufficiently tailored to its interest. 22
A categorical ban on firearm possession by undocumented immigrants generally cannot meet this standard of scrutiny. This is because such a ban, presumably passed for the purpose of protecting public safety, is grossly over-inclusive and could not be supported by legislative evidence. Undocumented immigrants pose no greater threat to public safety than do citizens of the United States—indeed, statistics indicate that they pose less of a threat. A 2015 study conducted by the independent nonprofit research organization National Academies of Sciences, Engineering, and Medicine found that immigrants, including those likely to be undocumented, are less likely to commit crimes than United States citizens. 23 This finding is supported by a 2017 study conducted by the libertarian Cato Institute, which analyzed data from the United States Census Bureau’s American Community Survey and found that undocumented immigrants are 44 percent less likely to be incarcerated than United States citizens. 24 Another large study published in the Journal of Ethnicity in Criminal Justice found that higher immigrant populations are associated with lower crime rates. 25 Specifically, that study compared immigration rates with crime rates for 200 metropolitan areas across the country from 1970-2010 and found that each 1% increase in the foreign-born population resulted in a decrease in the violent crime rate of the area by 4.9 crimes. 26 Finally, the Oxford Encyclopedia of Criminology and Criminal Justice analyzed a variety of studies that have been conducted on the relationship between immigration and crime, and concluded that immigrants, documented or undocumented, do not increase crime rates. 27 These studies indicate that undocumented immigrants are not in fact more likely to engage in violence than native-born Americans. A categorical ban on possession of firearms by undocumented immigrants is therefore over-inclusive in that it deprives many people without any history of violence from exercising their Second Amendment rights.
Courts have found constitutional infirmity when faced with similarly over-inclusive restrictions on the Second Amendment right. For example, in Binderup v. Attorney General, the Third Circuit held a federal firearms restriction unconstitutional as applied to people who were convicted of non-violent misdemeanor offenses decades ago. 28 That court’s rationale was that no evidence suggested that barring non-violent misdemeanants from possessing firearms would serve the state’s asserted interest in protecting public safety. 29 Therefore, according to the Third Circuit, the statute failed intermediate scrutiny. 30
The same rationale applies to a categorical ban on firearm possession by undocumented immigrants. Such a ban is over-inclusive, and no evidence would substantiate indicating that it actually serves the state’s asserted interest. Because the state bears the burden under intermediate scrutiny to prove that its actions restricting constitutional rights are actually substantially related to an important government interest, this lack of evidence would be fatal to the ban.
It is beyond question that the United States is facing an epidemic of gun violence. However, stripping the constitutional rights of undocumented immigrants will not solve this problem. Undocumented immigrants are just as entitled as American citizens to protect themselves and their families from harm. Categorically prohibiting them from exercising this fundamental right by virtue of their immigration status alone does not serve to protect public safety; it only serves to endanger those undocumented immigrants who have been stripped of their right to defend themselves. The constitution does not allow for such an overly broad infringement on the Second Amendment.
