United States v. Perez ( 2021 )

19-620-cr
United States v. Perez
1 In the
2 United States Court of Appeals
3 For the Second Circuit
4 ________
5
6 AUGUST TERM 2019
7
8 ARGUED: FEBRUARY 13, 2020
9 DECIDED: JULY 29, 2021
10
11 No. 19-620-cr
12
13 UNITED STATES OF AMERICA,
14 Appellee,
15
16 v.
17
18 JAVIER PEREZ,
19 Defendant-Appellant.
20 ________
21
22 On Appeal from the United States District Court
23 for the Eastern District of New York.
24 ________
25
26 Before: WALKER, CARNEY, and MENASHI, * Circuit Judges.
27
28 ________
29
30 Defendant-Appellant Javier Perez appeals from a judgment of
31 conviction for possessing a firearm and ammunition while unlawfully
*
Circuit Judge Ralph K. Winter, originally a member of this panel,
died on December 8, 2020. Circuit Judge Steven J. Menashi has replaced
Judge Winter on the panel for this appeal. See 2d Cir. IOP E(b).
2 No. 19-620-cr
1 present in the United States. Perez challenges the statute of
2 conviction, 18 U.S.C. § 922(g)(5), on the basis that it violates the
3 Second Amendment right to bear arms by imposing a categorical bar
4 on his ability to possess a firearm or ammunition. Assuming without
5 deciding that, even as an undocumented alien, he is entitled to Second
6 Amendment protection, we hold that 18 U.S.C. § 922(g)(5), as applied
7 to Perez, withstands intermediate scrutiny. Accordingly, we
8 AFFIRM the judgment of the district court (Carol B. Amon, J.) in its
9 entirety.
10 Judge Menashi concurs in the judgment in a separate opinion.
11 ________
12
13 Yuanchung Lee, Federal Defenders of New York,
14 Inc., Appeals Bureau, for Defendant-Appellant Javier
15 Perez.
16 Tanya Hajjar (Kevin Trowel, on the brief), Assistant
17 United States Attorneys, for Mark J. Lesko, Acting
18 United States Attorney for the Eastern District of
19 New York, for Appellee.
20 ________
21
3 No. 19-620-cr
1 JOHN M. WALKER, JR., Circuit Judge:
2
3 Defendant-Appellant Javier Perez appeals from a judgment of
4 conviction for possessing a firearm and ammunition while unlawfully
5 present in the United States. Perez challenges the statute of
6 conviction, 18 U.S.C. § 922(g)(5), on the basis that it violates the
7 Second Amendment right to bear arms by imposing a categorical bar
8 on his ability to possess a firearm or ammunition. Assuming without
9 deciding that, even as an undocumented alien, he is entitled to Second
10 Amendment protection, we hold that 18 U.S.C. § 922(g)(5), as applied
11 to Perez, withstands intermediate scrutiny. Accordingly, we
12 AFFIRM the judgment of the district court (Carol B. Amon, J.) in its
13 entirety.
14 BACKGROUND
15 Javier Perez was born in rural Mexico in 1989 and entered the
16 United States without authorizing documents at the age of 13. From
17 that time until his arrest in 2018, he was self-employed as a carpenter.
18 After residing with relatives in Brooklyn, New York for several years,
19 he eventually secured his own apartment. Perez became involved
20 with the Ninos Malos gang in his youth, but asserts that he has not
21 been a member since 2012. In or around 2017, he moved to New
22 Haven, Connecticut to live with his girlfriend and her young son. He
23 has two children, who were born in the United States and are living
24 with their mother in Brooklyn, and whom he visits and helps support
25 financially.
4 No. 19-620-cr
1 The Offense Conduct
2 On July 23, 2016, Perez was attending a barbeque in the Sunset
3 Park neighborhood of Brooklyn when a violent fight broke out down
4 the street. Several young men wielding bats and machetes were
5 attacking a member of a rival gang. At some point during the fight,
6 Perez borrowed a firearm from an acquaintance, approached the
7 fight, and fired several shots into the air. Hearing the gunshots, the
8 young men scattered, and Perez returned to the barbeque and gave
9 the gun back to his acquaintance.
10 A few days later, the New York Police Department (NYPD)
11 obtained a video recording of the incident that showed the shooter to
12 be a man later identified as Perez. The NYPD identified the firearm
13 as a .380 caliber Davis Industries semiautomatic pistol by matching
14 its shell casing to that of a gun used in a subsequent shooting on
15 October 8, 2016, also in Brooklyn. In April 2017, after Perez was
16 arrested by NYPD officers for a separate offense, he admitted to being
17 the shooter at the July 23, 2016 incident and that he had borrowed and
18 fired the gun to intimidate the gang members. When he fired the gun,
19 he was unlawfully present in the United States.
20 Procedural History
21 On April 30, 2018, a grand jury indicted Perez on possession of
22 a firearm and ammunition while being an alien illegally and
23 unlawfully in the United States, in violation of 18 U.S.C. § 922(g)(5).
24 Perez moved to dismiss the indictment, arguing that § 922(g)(5) on its
25 face violated the Second Amendment by erecting a categorical bar on
5 No. 19-620-cr
1 the possession of firearms by illegal or unlawful aliens. The district
2 court denied the motion to dismiss the indictment. Assuming
3 without finding that the Second Amendment affords constitutional
4 protection to undocumented aliens, the district court concluded that
5 § 922(g)(5) survives intermediate scrutiny and thus is constitutional.
6 Perez entered a conditional plea of guilty that preserved his right to
7 challenge § 922(g)(5) under the Second Amendment, and was
8 sentenced to 20 months’ imprisonment and 3 years’ supervised
9 release. This appeal followed.
10 DISCUSSION
11 The sole issue on appeal is whether 18 U.S.C. § 922(g)(5) as
12 applied to Perez violates the Second Amendment. Section 922(g)(5)
13 prohibits “an alien . . . illegally or unlawfully in the United States”
14 from “possess[ing] . . . any firearm or ammunition” in or affecting
15 commerce. 1 We employ a two-step framework to determine the
16 constitutionality of a restriction on firearms: (1) we assess whether
17 the law burdens conduct protected by the Second Amendment; (2) we
1
The government argues that Perez waived his as-applied challenge
to the constitutionality of § 922(g)(5) because he raised solely a facial
challenge in the district court. We previously treated a defendant’s facial
challenge to a related provision, § 922(g)(6), which prohibits firearm
possession by one who has been dishonorably discharged from the military,
as an as-applied challenge, even though the defendant raised arguments
only as to the provision’s facial invalidity in the district court and on appeal.
See United States v. Jimenez, 895 F.3d 228, 232 (2d Cir. 2018). Consistent with
that approach, we consider here whether § 922(g)(5) is unconstitutional as
applied to Perez.
6 No. 19-620-cr
1 determine and apply the appropriate level of scrutiny. 2 We review de
2 novo the district court’s decision that the statute was constitutional as
3 applied. 3
4 I. Whether the Second Amendment Applies to Perez
5 The Second Amendment provides, “A well regulated Militia,
6 being necessary to the security of a free State, the right of the people
7 to keep and bear Arms, shall not be infringed.” Perez argues that “the
8 people” includes aliens like him, who are present unlawfully but have
9 developed substantial connections to the country. We have not
10 decided whether the Second Amendment protects undocumented
11 immigrants.
12 The Supreme Court outlined the contours of the Second
13 Amendment in the seminal decision, District of Columbia v. Heller. 4
14 Based on extensive historical analysis, Heller broadly declared that the
15 Second Amendment confers a right to bear arms while leaving details
16 of the right to further adjudication. Heller read the Second
17 Amendment to codify a preexisting right for the individual to
18 “possess and carry weapons in case of confrontation.” 5 That right,
19 however, does not extend to the “carry[ing] [of] arms for any sort of
2
New York State Rifle & Pistol Ass’n, Inc. v. Cuomo, 804 F.3d 242, 253
(2d Cir. 2015) (NYSRP).
3 Id. at 252 (internal quotation marks and citation omitted).
4 554 U.S. 570 (2008).
5 Id. at 592.
7 No. 19-620-cr
1 confrontation.” 6 Noting that the right is “not unlimited,” 7 the Court
2 considered the scope of the Second Amendment along two
3 dimensions: what types of “arms” are protected and who are among
4 “the people.” First, the Second Amendment protects the sorts of
5 weapons that were “in common use at the time” that were typically
6 owned by “law-abiding citizens for lawful purposes.” 8 This right, of
7 law-abiding persons to protect themselves and family members in the
8 home using a weapon in common use, is “the central component”
9 guaranteed by the Second Amendment. 9
10 Second, Heller suggested that “the people” in the text of the
11 Second Amendment is a term of art that refers to members of the
12 “political community.” 10 Heller relied on the Supreme Court’s prior
13 decision in United States v. Verdugo-Urquidez, 11 which examined the
14 Fourth Amendment’s reference to “the people,” and opined: “[Its
15 uses] suggest[] that ‘the people’ protected by the Fourth Amendment,
16 and by the First and Second Amendments, . . . refers to a class of
17 persons who are part of a national community or who have otherwise
18 developed sufficient connection with this country to be considered
19 part of that community.” 12 Based on this reading of “the people,” we
6
Id. at 595.
7 Id.8 Id. at 624, 627.
9 McDonald v. City of Chicago, 561 U.S. 742, 767 (2010) (quoting Heller,
554 U.S. at 599); see also id. at 780.
10 Heller, 554 U.S. at 580.
11 494 U.S. 259 (1990).
12 Heller, 554 U.S. at 580 (citing Verdugo-Urquidez, 494 U.S. at 265).
8 No. 19-620-cr
1 have previously concluded that, “[a]lthough the [Heller] Court uses
2 ‘citizens’, presumably at least some non-citizens are covered by the
3 Second Amendment.” 13 For example, permanent resident aliens who
4 are law-abiding, pay taxes, and contribute to political campaigns have
5 established connections with this country that may qualify them to be
6 among “the people” who have a Second Amendment right. 14
7 Relying on Heller and Verdugo-Urquidez, Perez argues that he is
8 among “the people” who possess a right to bear arms because he has
9 developed “sufficient connection[s] with” the United States, having
10 lived continuously in this country for the fifteen years preceding his
11 arrest. This analysis oversimplifies a question of some complexity.
12 Heller and Verdugo-Urquidez suggested that a person may be among
13 “the people” if he has developed connections with the United States,
14 but that those connections must be sufficiently great to qualify him as
15 a member of the “national” or “political” community. While Perez
16 appears to have put down roots in this country through years of
17 steady employment and a familial and social network, his status as an
18 unlawfully present alien necessarily makes him ineligible to vote or
19 hold certain government offices and subjects him to deportation at
20 any time. Excluded from participation in our democratic political
21 institutions, it is uncertain whether he can qualify as being part of the
13
Jimenez, 895 F.3d at 233 n.1.
14
See Verdugo-Urquidez, 494 U.S. at 271 (collecting cases recognizing
constitutional rights of resident aliens).
9 No. 19-620-cr
1 “national” or “political” community. 15 Regardless, reaching this issue
2 here risks “introducing difficult questions into our jurisprudence,”16
3 such as how “the people” in this context coheres with different but
4 related designations in other enumerated rights. For example,
5 “person,” as used in the Fifth and Fourteenth Amendments, has “long
6 been recognized” to include unlawful aliens and confer on them due
7 process rights. 17
8 Taking a different approach to the question, various of our
9 sister courts have read Heller to exclude entirely from the Second
10 Amendment groups who have defied the law or are otherwise
11 “unvirtuous.” 18 Heller identified the right of “law-abiding,
12 responsible” persons to keep arms to be at the heart of the Second
13 Amendment, and validated “longstanding prohibitions on the
14 possession of firearms by felons and the mentally ill.” 19 Although
15 Heller itself left open whether certain groups are wholly excluded
16 from the Second Amendment’s protections or, instead, have a right
17 that legislatures may severely restrict, some circuits have relied on the
18 foregoing passages in Heller to conclude that undocumented aliens
19 like Perez are not entitled to Second Amendment protections because
15
Cf. Sugarman v. Dougall, 413 U.S. 634, 647 (1973) (describing a
political community as based in part on who can vote and hold certain state
positions that perform functions going to “the heart of representative
government”).
16 Jimenez, 895 F.3d at 234.
17 Plyler v. Doe, 457 U.S. 202, 210 (1982).
18 Jimenez, 895 F.3d at 233 (collecting cases from the Third, Fourth,
Eighth, Ninth, and Eleventh Circuits).
19 Heller, 554 U.S. at 626.
10 No. 19-620-cr
1 they are not “law-abiding.” 20 Yet other circuits have held or assumed
2 that unauthorized aliens are included in “the people” but concluded
3 that § 922(g)(5) is a permissible restriction. 21
4 Our court has declined to address the extent to which the
5 Second Amendment protects conduct or individuals beyond the core
6 guarantee of a law-abiding person’s right to keep firearms for self-
7 defense. 22 Recognizing that Heller left a “vast terra incognita” as to
8 what conduct or characteristics disqualify a person from the Second
9 Amendment’s protections, 23 our practice in those cases has been to
10 assume that a given firearm restriction implicates rights guaranteed
11 by the Second Amendment and determine whether the restriction
12 would nonetheless withstand the appropriate level of scrutiny. 24 We
13 see no reason to abandon that approach here. Deciding whether
14 undocumented immigrants like Perez have a constitutional right to
15 possess firearms “risks introducing difficult questions into our
20 United States v. Carpio-Leon, 701 F.3d 974, 979–81 (4th Cir. 2012);
United States v. Portillo-Munoz, 643 F.3d 437, 440 (5th Cir. 2011), as revised
(June 29, 2011); United States v. Flores, 663 F.3d 1022 (8th Cir. 2011) (per
curiam).
21 United States v. Meza-Rodriguez, 798 F.3d 664, 666, 672 (7th Cir. 2015)
(holding); United States v. Torres, 911 F.3d 1253, 1261 (9th Cir. 2019)
(assuming without deciding); United States v. Huitron-Guizar, 678 F.3d 1164,
1169 (10th Cir. 2012) (assuming without deciding).
22 See NYSRP, 804 F.3d at 257; Jimenez, 895 F.3d at 233–34.
23 Jimenez, 895 F.3d at 234 (quoting Kachalsky v. Cnty. of Westchester,
701 F.3d 81, 89 (2d Cir. 2012)).
24 Id.11 No. 19-620-cr
1 jurisprudence, including questions that have divided other courts.” 25
2 We need not decide the question here, because even if we were to
3 assume that Perez has a constitutional right to possess firearms, we
4 find that § 922(g)(5) is a permissible restriction when applied to the
5 facts of this case.
6 II. Determining and Applying the Requisite Level of Scrutiny
7 We first determine the appropriate level of scrutiny to apply to
8 § 922(g)(5). Generally, courts apply one of three levels of scrutiny to
9 evaluate whether a law is constitutional: strict scrutiny, intermediate
10 scrutiny, or rational basis review. Under strict scrutiny, the most
11 demanding standard, the government must demonstrate that the
12 challenged law serves a compelling governmental interest and is
13 narrowly tailored to achieve that interest. 26 Intermediate scrutiny is
14 less demanding, requiring only that the law be “substantially related
15 to the achievement of an important governmental interest.” 27 The
16 most lenient standard, rational basis review, asks whether the law is
17 rationally related to a legitimate governmental purpose. 28 Heller
18 cautioned that a restriction on Second Amendment rights requires
19 heightened scrutiny beyond rational basis. 29
25
Id. (citing Binderup v. Att’y Gen. United States of Am., 836 F.3d 336(3d Cir. 2016), and Tyler v. Hillsdale Cnty. Sheriff's Dep’t, 837 F.3d 678 (6th
Cir. 2016)).
26 Gratz v. Bollinger, 539 U.S. 244, 270 (2003).
27 NYSRP, 804 F.3d at 261 (quoting Kachalsky, 701 F.3d at 96).
28 City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 440 (1985).
29 Heller, 554 U.S. at 628 n.27.
12 No. 19-620-cr
1 We determine whether a restriction on firearms is examined
2 under strict or intermediate scrutiny based on two factors: “(1) how
3 close the law comes to the core of the Second Amendment right and
4 (2) the severity of the law’s burden on the right.” 30 “[L]aws that place
5 either insubstantial burdens on conduct at the core of the Second
6 Amendment or substantial burdens on conduct outside the core of the
7 Second Amendment . . . can be examined using intermediate
8 scrutiny.” 31 Only restrictions that substantially burden core rights
9 trigger strict scrutiny. 32
10 Heller identified as at the core of the Second Amendment “the
11 right of law-abiding, responsible citizens to use arms” in self-defense
12 in the home. 33 We have also emphasized that whether the possessor
13 is “law-abiding and responsible” is critical to determining whether an
14 interest falls within the core right. 34 In United States v. Jimenez, we
15 upheld an analogous provision that banned the possession of guns by
16 those who were dishonorably discharged from the military on the
17 basis that such individuals generally have been convicted of felony-
18 equivalent conduct. 35 To determine the burden imposed by a
19 restriction on the possession of firearms, we consider the scope of the
30
NYSRP, 804 F.3d at 258 (internal quotation marks and citation
omitted).
31 Jimenez, 895 F.3d at 234.
32 Id.
33 See Heller, 554 U.S. at 635.
34 Jimenez, 895 F.3d at 235; see also United States v. Bryant, 711 F.3d 364,
369 (2d Cir. 2013) (per curiam).
35 Jimenez, 895 F.3d at 236–37.
13 No. 19-620-cr
1 restriction and the extent to which adequate alternatives remain for
2 persons who are law-abiding to acquire a firearm for self-defense. 36
3 Section 922(g)(5) erects a categorical ban on the possession of
4 firearms by undocumented immigrants like Perez, and thus imposes
5 a substantial burden on his ability to bear arms. Indeed, this burden
6 is insurmountable as long as his presence in the country is unlawful.
7 His interest in simply possessing firearms, however, is not at the core
8 of the Second Amendment right identified in Heller. As noted above,
9 Heller identified the core interest of the right as self-defense in the
10 home. Here, Perez’s possession was neither in self-defense nor in the
11 home. While outdoors, he quickly took a weapon not his own,
12 charged down a residential street towards a gang fight, and shot the
13 weapon several times in the air.
14 Perez also does not qualify as a “law-abiding, responsible
15 citizen[]” because, however he may choose to live his life in the
16 United States, his presence here is unlawful. Perez asserts that his
17 undocumented status, without more, is not a crime and, unlike the
18 defendant in Jimenez, he had no criminal history prior to this
19 conviction. But Perez cannot reasonably dispute that he entered this
20 country without authorization, has continued to remain without
21 complying with established laws and procedures applicable to
22 immigrants, and therefore is subject to deportation. We do not
23 consider Perez’s interest in possessing guns at all similar to that of a
24 “law-abiding, responsible” person pursuing self-defense. We agree
36
NYSRP, 804 F.3d at 259.
14 No. 19-620-cr
1 with the district court that, as applied to Perez, § 922(g)(5) does not
2 implicate conduct at the core of the Second Amendment and thus
3 conclude that intermediate scrutiny applies.
4 To withstand intermediate scrutiny, the law must be
5 “substantially related to the achievement of an important
6 governmental interest.” 37 We have observed that regulation of
7 firearms “has always been more robust” than governmental measures
8 affecting other constitutional rights. 38 Thus, our only role is to ensure
9 that Congress formulated the challenged regulation “based on
10 substantial evidence.” 39 Perez concedes that public safety in the
11 context of using firearms is an important governmental objective. We
12 turn our attention, then, to whether § 922(g)(5) bears a substantial
13 relation to the achievement of that objective and conclude that it does.
14 The government supplies three principal rationales for the ends
15 served by § 922(g)(5), each of which we find furthers public safety:
16 (1) preventing individuals who live outside the law from possessing
17 guns, (2) assisting the government in regulating firearm trafficking by
18 preventing those who are beyond the federal government’s control
19 from distributing and purchasing guns, and (3) preventing those who
20 have demonstrated disrespect for our laws from possessing firearms.
21 Based on all three rationales, we conclude that § 922(g)(5) is
37
Id. at 261 (quoting Kachalsky, 701 F.3d at 96).
38
Kachalsky, 701 F.3d at 100.
39 Id. at 97 (quoting Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 666
(1994)) (internal quotation marks omitted).
15 No. 19-620-cr
1 substantially related to the government’s interest in promoting public
2 safety with respect to the use of firearms.
3 First, it can hardly be disputed that, simply by virtue of their
4 status, undocumented immigrants largely “liv[e] outside the law” in
5 at least that one fundamental respect and sometimes more. 40 By not
6 taking part in all formal systems of registration, identification, or
7 employment that the law requires, undocumented aliens are “harder
8 to trace” 41 and thus their behavior is harder to regulate in some
9 respects. Perez’s arguments, that he did not assume a false identity
10 and that certain jurisdictions issue driver’s licenses regardless of
11 immigration status, carry little weight. It remains that Perez has
12 never filed federal tax returns or had a social security number, and
13 there is no indication that he was ever employed “on the books.”
14 Second, by prohibiting unlawful immigrants like Perez from
15 possessing lethal weapons, § 922(g)(5) furthers Congress’s interest in
16 regulating interstate commerce in firearms for the purpose of
17 investigating, tracking, and preventing gun violence. “When
18 Congress enacted [18 U.S.C. § 921 et seq.], it was concerned with the
19 widespread traffic in firearms,” 42 having found that the United States
20 had “become the dumping ground of the castoff surplus military
40
United States v. Toner, 728 F.2d 115, 129 (2d Cir. 1984).
41
United States v. Torres, 911 F.3d 1253, 1264 (9th Cir. 2019).
42 Huddleston v. United States, 415 U.S. 814, 824 (1974).
16 No. 19-620-cr
1 weapons of other nations.” 43 While the federal firearm regulatory
2 regime covers manufacturers and importers, wholesalers, and
3 retailers, the secondary market of private sales is largely
4 unregulated. 44 Firearms transferred even once by an unlicensed seller
5 and later used in a crime are “generally impossible” for law
6 enforcement to trace. 45 The secondary market of private transactions
7 has also been a substantial source of guns diverted to the illegal
8 market. 46 Born of a fear that their immigration status could be
9 discovered, unauthorized aliens seeking to procure a firearm may be
10 especially attracted to purchasing on the secondary market, where
11 sellers are not required to conduct background checks or maintain
12 transfer records under federal law. 47 Section 922(g)(5) thus aids
13 Congress’s efforts in suppressing the illicit market in firearms and
14 regulating interstate commerce in firearms.
43 Omnibus Crime Control and Safe Streets Act of 1968, Pub. L. No.
90-351, § 901(a)(7), 82 Stat. 226 (1968).44 Abramski v. United States, 573 U.S.
169, 185 (2014).
44 Abramski v. United States, 573 U.S. 169, 185 (2014).
45 Bureau of Alcohol, Tobacco, & Firearms, Youth Crime Gun
Interdiction Initiative, Crime Gun Trace Reports (2000) 29 (July 2002),
https://www.atf.gov/file/2176/download.
46 Bureau of Alcohol, Tobacco, & Firearms, Youth Crime Gun
Interdiction Initiative, Performance Report for the Senate and House Committees
on Appropriations Pursuant to Conference Report 105-825 6 (Feb. 1999),
https://www.atf.gov/file/5601/download.
47 See Abramski, 573 U.S. at 180–81 (discussing why an individual
prohibited from owning firearms might send a straw purchaser to buy a
firearm on his behalf).
17 No. 19-620-cr
1 Third, the government has an obvious interest in prohibiting
2 the possession of firearms by those who are not, as Heller put it, “law-
3 abiding.” Congress has every right to “conclude[] that those who
4 show a willingness to defy our law are candidates for further
5 misfeasance or at least a group that ought not be armed when
6 authorities seek them.” 48 Perez does not dispute that he has
7 continuously failed to be “law-abiding” by remaining in this country
8 without authorization, even though he may have lacked criminal
9 intent as a minor entering the country. As to Perez’s assertion that
10 § 922(g)(5) is overbroad, we acknowledge that many undocumented
11 immigrants have never committed a crime of violence and that many
12 could be trusted with a firearm. But the same can be said for felons
13 and people with a mental illness who have not committed a violent
14 offense, groups also barred from possessing firearms. Congress is
15 “better equipped than the judiciary to make sensitive public policy
16 judgments” regarding the dangers posed by firearm possession and
17 how to mitigate those risks. 49 The legislative measures it enacts to
18 reduce those dangers, such as § 922(g)(5), need not be the least
19 restrictive means of achieving that objective when reviewed under
20 intermediate scrutiny. 50 Accordingly, we conclude that § 922(g)(5)
21 does not substantially burden any Second Amendment right to bear
22 arms that is particularized to Perez.
48
United States v. Huitron-Guizar, 678 F.3d 1164, 1170 (10th Cir. 2012).
49
NYSRP, 804 F.3d at 261 (internal quotation marks omitted)
(quoting Kachalsky, 701 F.3d at 97).
50 Id.
18 No. 19-620-cr
1 CONCLUSION
2 For the foregoing reasons, we AFFIRM the district court’s
3 decision in full.
MENASHI, Circuit Judge, concurring in the judgment:
In today’s opinion, the court declines to hold that illegal aliens
lack the protection of the Second Amendment. The court holds
instead that because illegal aliens have engaged in unlawful conduct,
the government has an important interest in preventing them from
possessing firearms and that courts should defer to Congress’s public
policy judgments about how best to do so. In a roundabout way,
therefore, the court arrives at the conclusion that illegal aliens lack the
protection of the Second Amendment. See ante at 16-17 (noting that
illegal aliens “fail[] to be ‘law-abiding’ by remaining in this country
without authorization” and that “the government has an obvious
interest in prohibiting the possession of firearms by those who are not
… ‘law-abiding’”). By reaching this conclusion indirectly instead of
directly, however, the court undermines the protections of the Second
Amendment for American citizens by watering down the
intermediate scrutiny the court purportedly applies to the challenged
restriction into a form of rational basis review.
In Heller, the Supreme Court spoke of “the right of law-abiding,
responsible citizens to use arms in defense of hearth and home.”
District of Columbia v. Heller, 554 U.S. 570, 635 (2008). As the court
recognizes, illegal aliens are “[e]xcluded from participation in our
democratic political institutions.” Ante at 8. This is not simply a matter
of whether illegal aliens fail to be “law-abiding” and “responsible.” It
means they are not “citizens”—“members of the political
community” to whom “‘the right of the people to keep and bear
Arms’” belongs. Heller, 554 U.S. at 576, 580 (quoting U.S. Const.
amend. II). The court strains to avoid this key point from Heller. 1 I
would instead join those circuits that have straightforwardly
concluded that illegal aliens cannot invoke the right of the people to
keep and bear arms under the Second Amendment. I concur only in
the judgment.
I
As an initial matter, I disagree with the court’s reasons for
applying intermediate scrutiny to Perez’s claim. The court contends
that Perez’s “interest in simply possessing firearms … is not at the
core of the Second Amendment right identified in Heller” because
“Heller identified the core interest of the right as self-defense in the
home” and “Perez’s possession was neither in self-defense nor in the
home.” Ante at 13. Rather, “[w]hile outdoors, [Perez] quickly took a
weapon not his own, charged down a residential street towards a
gang fight, and shot the weapon several times into the air.” Id. The
court concludes from these circumstances that Perez’s interest in
1 The court repeatedly truncates quotations or paraphrases Heller to replace
the word “citizens” with “persons.” See ante at 7 (noting that the right “of
law-abiding persons to protect themselves and family members in the
home” is “‘the central component’ guaranteed by the Second Amendment”);
id. at 9 (“Heller identified the right of ‘law-abiding, responsible’ persons to
keep arms to be at the heart of the Second Amendment.”); id. at 10
(identifying “the core guarantee of a law-abiding person’s right to keep
firearms for self-defense”); id. at 13 (considering whether “alternatives
remain for persons who are law-abiding to acquire a firearm for self-
defense”); id. at 13 (comparing “Perez’s interest in possessing guns” with
“that of a ‘law-abiding, responsible’ person pursuing self-defense”); id. at
16 (discussing “those who are not, as Heller put it, ‘law-abiding’”). Because
the court makes so much of the words “law-abiding” and “responsible” in
the Heller opinion, it is striking how much work it does to ignore the word
that immediately follows.
2
possessing firearms is “not … at all similar to that of a ‘law-abiding,
responsible’ person pursuing self-defense” and therefore “does not
implicate conduct at the core of the Second Amendment.” Id. at 13-14.
This explanation fails to account for the fact that Perez took
possession of and fired the gun to deter “a group of kids with bats
and machetes [who] were attacking a boy from a rival gang,”
Appellant’s Br. 4; see App’x 88, and thus used the gun in defense of
another. The law generally draws no distinction between the use of
force in defense of self and in defense of others. See, e.g., N.Y. Penal
Law § 35.15 (“A person may … use physical force upon another
person when and to the extent he or she reasonably believes such to
be necessary to defend himself, herself or a third person from what he
or she reasonably believes to be the use or imminent use of unlawful
physical force by such other person.”) (emphasis added); People v.
Hernandez, 98 N.Y.2d 175, 179-80 (2002) (“[Section 35.15] reflects the
principle, first established under the common law and long
recognized by statute, that deadly physical force may be justified—
with no criminal liability—if the deadly force was used in self-defense
or in defense of others.”) (emphasis added).
I would not import such a novel distinction into the “core” of
the Second Amendment. Heller does not suggest that there is a
distinction between self-defense and defense of others for the
purposes of the Second Amendment. To the contrary, Heller
emphasizes the right to keep and bear arms “for protection of one’s
home and family,” which does not limit the core of the right to defense
only of oneself. 554 U.S. at 628-29 (emphasis added).
3
Accordingly, I would not conclude that Perez’s claim falls
outside of the core of the Second Amendment right because he acted
in defense of another rather than himself.
II
Because Perez used a firearm in defense of another, the only
basis for holding that he falls outside the core of the Second
Amendment is his immigration status. As the opinion notes, there is
a strong argument that Perez’s disqualification from public life and
lack of authorization to reside in the United States means he is outside
the “political community” and therefore “the people” to whom the
right to keep and bear arms belongs. Ante at 7-9; see Heller, 554 U.S. at
580. The court declines to reach this conclusion directly, however,
explaining that to do so would “risk[] ‘introducing difficult questions
into our jurisprudence,’ such as how ‘the people’ in this context
coheres with different but related designations in other enumerated
rights.” Ante at 9 (quoting United States v. Jimenez, 895 F.3d 228, 234
(2d Cir. 2018)). Instead, the court reaches the same result indirectly by
holding that illegal aliens are outside the core of the Second
Amendment because they have acted unlawfully, that the
government has an important interest in preventing people who act
unlawfully from possessing firearms, and that courts should defer to
Congress’s “sensitive public policy judgments” about how to do so.
Id. at 13-17.
The upshot is that illegal aliens have no meaningful rights
under the Second Amendment. The problem is that by reaching this
conclusion indirectly instead of directly, the court—while purporting
to apply intermediate scrutiny—affords so much deference to
legislative judgments about restricting gun ownership as to subject
4
such restrictions only to rational basis review. The court even
concedes that a categorical ban on illegal aliens owning firearms is
“overbroad” because “many undocumented immigrants have never
committed a crime of violence and … could be trusted with a
firearm.” Id. at 17. Thus, we have an approach under which those
protected by the Second Amendment and who “have never
committed a crime of violence” and “could be trusted with a firearm”
could nevertheless be deprived of their Second Amendment rights.
Id. This approach risks undermining the Second Amendment across
the board.
Unlike rational basis review, which is “indulgent and
respectful,” Winston v. City of Syracuse, 887 F.3d 553, 560 (2d Cir. 2018),
intermediate scrutiny must be “sufficiently skeptical and probing to
provide the rigorous protection that constitutional rights deserve,”
Ramos v. Town of Vernon, 353 F.3d 171, 181 (2d Cir. 2003). Yet the court
upholds a categorical ban on firearm ownership by affording
deference to the exercise of Congress’s power “to make sensitive
public policy judgments” based on facts that it had “every right to
conclude” were true—but, as far as the court is concerned, might very
well be false. Ante at 16-17 (internal quotation marks and alteration
omitted); see also id. at 16 (noting that “unauthorized aliens seeking to
procure a firearm may be especially attracted to purchasing on the
secondary market”) (emphasis added). Far from “skeptical and
probing,” Ramos, 353 F.3d at 181, the court’s deferential posture
resembles rational basis review rather than intermediate scrutiny. See
Armour v. City of Indianapolis, 566 U.S. 673, 681 (2012) (explaining that
under rational basis review, “a law [is] constitutionally valid if ‘there
is a plausible policy reason for the [law], the legislative facts on which
the [law] is apparently based rationally may have been considered to
5
be true by the governmental decisionmaker, and the relationship of
the [law] to its goal is not so attenuated as to render [it] arbitrary or
irrational’”).
To the extent that the court purports to apply intermediate
scrutiny, its analysis falls short. Under intermediate scrutiny, the
government bears the burden to “show that the challenged legislative
enactment is substantially related to an important governmental
interest.” Ramos, 353 F.3d at 175. In the court’s view, the government
has carried this burden because the challenged restriction “furthers
Congress’s interest in regulating interstate commerce in firearms.”
Ante at 15-16. But regulating the very conduct protected by a
constitutional right is not “an important governmental interest” that
can withstand intermediate scrutiny. Ramos, 353 F.3d at 175. And if
the government’s “interest in regulating interstate commerce in
firearms” is sufficient to satisfy intermediate scrutiny, ante at 15-16,
then intermediate scrutiny has become meaningless in the Second
Amendment context because any restriction on gun ownership will
be “substantially related to” that interest, Ramos, 353 F.3d at 175.
The court identifies other important governmental interests
that support the challenged restriction—such as “preventing gun
violence,” ante at 15—but the court simply accepts the government’s
assertions about those interests without scrutiny. For example, the
court states that “[t]he secondary market of private transactions has
… been a substantial source of guns diverted to the illegal market”
and that illegal aliens “may be especially attracted to purchasing on
the secondary market.” Id. at 16. The court makes no effort to consider
whether evidence supports this claim about the “secondary market”
or whether the court’s speculation about the relationship between
illegal aliens and that market has any basis in fact. The court also fails
6
to analyze whether barring illegal aliens from owning firearms has
actually “aid[ed] Congress’s efforts in suppressing the illicit market
in firearms,” id., or whether “the Government can achieve its
legitimate objectives in less restrictive ways,” United States v. Alvarez,
567 U.S. 709, 730 (2012) (Breyer, J., concurring in the judgment).
This sort of perfunctory analysis, accepting speculation in place
of record evidence, does not amount to intermediate scrutiny. Under
intermediate scrutiny, “we have an independent duty to identify with
care the Government interests supporting the scheme, to inquire into
the reasonableness of congressional findings regarding its necessity,
and to examine the fit between its goals and its consequences.” Turner
Broad. Sys., Inc. v. FCC, 520 U.S. 180, 229 (1997) (O’Connor, J.,
dissenting). By accepting the government’s assertions without
requiring support, the court shirks this duty.
The court fares no better with respect to its argument that “the
government has an obvious interest in prohibiting the possession of
firearms by those who are not … ‘law-abiding.’” Ante at 16. Under our
precedents, whether the individual subject to the challenged firearm
restriction is “law-abiding” determines the level scrutiny we apply; it
does not also determine whether the challenged restriction survives
that scrutiny. See Jimenez, 895 F.3d at 234-36. Indeed, the court decides
to apply intermediate scrutiny to Perez in part because he “does not
qualify as … law-abiding” due to his “unlawful” presence in the
country. Ante at 13-14 (internal quotation marks omitted). Yet the
court then relies on that same justification to hold that intermediate
scrutiny is satisfied. See id. at 16-17. The court’s application of
intermediate scrutiny thus plays no role in its decision: the same
reason intermediate scrutiny applies is the reason that such scrutiny
is overcome, and therefore the court knows before it applies any
7
scrutiny at all that the challenged restriction will survive. Moreover,
because Perez’s immigration status both determines the level of
scrutiny and satisfies that scrutiny, the court ultimately arrives at the
conclusion it strains to avoid: illegal aliens—by virtue of their
immigration status alone—are not protected under the Second
Amendment. 2
The court’s opinion, however, is not limited to illegal aliens.
Because the court collapses Perez’s immigration status into a larger
category of people who are not “law-abiding,” the court suggests that
anyone who falls into this broad and ill-defined category may be
subjected to a ban on firearms possession. I have no doubt that the
government has a “substantial, indeed compelling, … interest[] in
public safety and crime prevention.” Kachalsky v. County of
Westchester, 701 F.3d 81, 97 (2d Cir. 2012). That interest might justify
restrictions on firearms possession for those properly determined to
be dangerous or violent in light of “the time-honored principle that
the right to keep and bear arms does not extend to those likely to
commit violent offenses.” Binderup v. Att’y Gen., 836 F.3d 336, 367 (3d
Cir. 2016) (Hardiman, J., concurring in part and concurring in the
judgments); see also Kanter v. Barr, 919 F.3d 437, 451 (7th Cir. 2019)
(Barrett, J., dissenting) (“History is consistent with common sense: it
2 It is no answer that the court also relies on Congress’s “public policy
judgment[]”that illegal aliens should not be allowed to own firearms in
upholding the challenged restriction. Ante at 17. “The very enumeration of
the right” is supposed to “take[] out of the hands of government … the
power to decide on a case-by-case basis whether the right is really worth
insisting upon.” Heller, 554 U.S. at 634. Yet the court holds that Congress
can bar illegal aliens from owning firearms due to their immigration status
alone. The court’s opinion thus does not treat illegal aliens as possessing any
rights under the Second Amendment.
8
demonstrates that legislatures have the power to prohibit dangerous
people from possessing guns.”).
But Perez has not been convicted of—or even charged with—
any violent crime. He says that he “had no criminal history prior to
this conviction,” and the court does not dispute that assertion. Ante at
13; see Appellant’s Br. 4 n.2 (stating that Perez “had zero criminal
history points” for the purposes of sentencing). Under the court’s
logic, therefore, a person who has “never committed a crime of
violence and … could be trusted with a firearm” but commits a single
non-violent offense, ante at 17, may be divested of all rights under the
Second Amendment. The court’s apparent comfort with this result
“treat[s] the right recognized in Heller as a second-class right, subject
to an entirely different body of rules than the other Bill of Rights
guarantees.” McDonald v. City of Chicago, 561 U.S. 742, 780 (2010); see
also Kanter, 919 F.3d at 451 (Barrett, J., dissenting) (“[T]he power to
prohibit dangerous people from possessing guns … extends only to
people who are dangerous.”).
III
Rather than reach the conclusion that illegal aliens lack Second
Amendment rights through excessive deference to Congress’s
“sensitive public policy judgments,” ante at 17, I would join those
circuits that have held that illegal aliens are not among “the people”
to whom the right to keep and bear arms under the Second
Amendment belongs. See United States v. Carpio-Leon, 701 F.3d 974, 979
(4th Cir. 2012) (“[I]llegal aliens do not belong to the class of law-
abiding members of the political community to whom the Second
Amendment gives protection.”); United States v. Flores, 663 F.3d 1022,
1023 (8th Cir. 2011) (per curiam) (“[T]he protections of the Second
9
Amendment do not extend to aliens illegally present in this
country.”); United States v. Portillo-Munoz, 643 F.3d 437, 442 (5th Cir.
2011) (“Whatever else the term means or includes, the phrase ‘the
people’ in the Second Amendment of the Constitution does not
include aliens illegally in the United States.”).
The Second Amendment 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.” U.S. Const. amend. II.
By protecting the right of “the people,” the Second Amendment “is
distinguishable from the Fifth and Fourteenth Amendments, which
provide protections to ‘persons.’” Carpio-Leon, 701 F.3d at 978. As the
Supreme Court has explained, the phrase “the people” is “a term of
art employed in select parts of the Constitution … [that] refers to a
class of persons who are part of a national community or who have
otherwise developed sufficient connection with this country to be
considered part of that community.” United States v. Verdugo-
Urquidez, 494 U.S. 259, 265 (1990). In Heller, the Supreme Court
emphasized that “the people” within the context of the Second
Amendment “unambiguously refers to all members of the political
community.” 554 U.S. at 580 (emphasis added).
The Court emphasized this conception of “the people”
throughout Heller, which “frequently connect[s] arms-bearing and
‘citizenship.’” Carpio-Leon, 701 F.3d at 978. That connection is
unsurprising because the Second Amendment, while “not limited to
the carrying of arms in a militia,” is rooted in the “right of citizens to
‘bear arms in defense of themselves and the state.’” Heller, 554 U.S. at
584-86 (emphasis added). While Heller held that the Second
Amendment protects “an individual right to keep and bear arms,” the
Heller Court tied that right to citizenship, explaining that the Second
10
Amendment “elevates above all other interests the right of law-
abiding, responsible citizens to use arms in defense of hearth and
home.” Id. at 595, 635 (emphasis added). 3
That the Second Amendment codifies a right belonging to
members of the political community is further confirmed by
examining its historical antecedents and the practice of “founding-era
legislatures.” Kanter, 919 F.3d at 454 (Barrett, J., dissenting). In
colonial America, the right to keep and bear arms “did not extend to
all New World residents.” Joyce Lee Malcolm, To Keep and Bear
Arms: The Origins of an Anglo-American Right 140 (1996). While
“[a]lien men … could speak, print, worship, enter into contracts, hold
personal property in their own name, sue and be sued, and exercise
sundry other civil rights,” they “typically could not vote, hold public
office, or serve on juries” and did not have “the right to bear arms”
because these “were rights of members of the polity.” Akhil Reed
Amar, The Bill of Rights: Creation and Reconstruction 48 (1998). 4
Consistent with that understanding, both Massachusetts and Virginia
made it a crime to arm American Indians who, “[a]s non-citizens, …
were neither expected, nor usually allowed, to participate in the
militia.” Malcolm, supra, at 140. As non-citizens, American Indians
3 The court quotes dicta from our decision in United States v. Jimenez to the
effect that “[a]lthough the [Supreme] Court uses ‘citizens’ [in Heller],
presumably at least some non-citizens are covered by the Second
Amendment.” 895 F.3d 228, 233 n.1 (2d Cir. 2018). Jimenez involved a federal
law that proscribes firearm ownership for individuals dishonorably
discharged from the military. See id. at 231. The case had nothing to do with
the application of the Second Amendment to non-citizens, and the opinion
contains no holding addressing that issue.
4 See also Amar, supra, at 48 n.* (“[A]rms bearing and suffrage were
intimately linked two hundred years ago and have remained so.”).
11
were not “entitled to the rights of English subjects,” and “[t]heir
inability to legally own guns … confirmed their status as outsiders”
to the political community. Id. at 141. A Virginia statute from 1756 was
even more restrictive, barring Catholics from owning arms unless
they swore “allegiance to the Hanoverian dynasty and to the
Protestant succession.” Robert H. Churchill, Gun Regulation, the Police
Power, and the Right to Keep Arms in Early America: The Legal Context of
the Second Amendment, 25 L. & Hist. Rev. 139, 157 (2007). That
measure, which followed longstanding English practice, 5 was
“consistent with the undivided allegiance to the sovereign that had
been the definition of membership in the English body politic since
the Reformation.” Churchill, supra, at 157.
Following independence, membership in the political
community remained a precondition to the right to keep and bear
arms, as “the new state governments … framed their police power to
disarm around a test of allegiance.” Id. at 159. Pennsylvania barred
those who refused to declare their allegiance to the commonwealth
from owning arms. Id. Several other states followed that practice. Id.
at 159-60. Those refusing to swear allegiance to their states not only
lacked the right to keep and bear arms but also could not vote, hold
office, or serve on juries, further indicating their exclusion from the
political community. Id. State constitutions in the early republic
5 The provision of the English Bill of Rights that “has long been understood
to be the predecessor to our Second Amendment” limited the right to
“‘have Arms for their Defense’” to “‘Subjects which are Protestants.’” Heller,
554 U.S. at 593 (quoting 1 W. & M., ch. 2, § 7, in 3 Eng. Stat. at Large 441).
12
continued a similar practice by restricting the right to keep and bear
arms to citizens. 6
The connection between the right to keep and bear arms and
membership in the political community forecloses Perez’s argument
that he is “among ‘the people’ protected by the Second Amendment.”
Appellant’s Br. 8. “Illegal aliens are not ‘law-abiding, responsible
citizens’ or ‘members of the political community.’” Portillo-Munoz,
643 F.3d at 440. That illegal aliens remain outside the political
community is reflected throughout the Constitution and federal law.
Illegal aliens may not hold federal elective office, U.S. Const. art. I, § 2,
cl. 2; id. art. I § 3, cl. 3; id. art. II, § 1, cl. 5, are barred from voting in
federal elections, 18 U.S.C. § 611(a), may not serve on federal juries,
28 U.S.C. § 1865(b)(1), and are subject to removal from the United
States at any time, 8 U.S.C. § 1227(a). Accordingly, illegal aliens are
not “members of the political community”—that is, “the people”—
who may invoke the Second Amendment. Heller, 554 U.S. at 580. 7
6 See, e.g., Ala. Const. of 1819, art. I, § 23 (“Every citizen has a right to bear
arms in defence of himself and the State.”); Conn. Const. of 1818, art. I, § 17
(“Every citizen has a right to bear arms in defense of himself and the
State.”); Ky. Const. of 1792, art. XII, § 23 (“The rights of the citizens to bear
arms in defence of themselves and the State shall not be questioned.”); Me.
Const. of 1819, art. I, § 16 (“Every citizen has a right to keep and bear arms
for the common defence; and this right shall never be questioned.”); Miss.
Const. of 1817, art. I, § 23 (“Every citizen has a right to bear arms in defence
of himself and the State.”); Pa. Const. of 1790, art. IX, § 21 (“That the right
of the citizens to bear arms, in defence of themselves and the state, shall not
be questioned.”).
7 In his brief to the district court, Perez acknowledged that Heller
“offhandedly use[s] language such as ‘law-abiding citizens’ and ‘members
of the political community’” but argued that “those sections of the Court’s
13
***
I would hold that illegal aliens lack protection under the
Second Amendment and affirm Perez’s conviction on that ground.
Because the court reaches this conclusion in an indirect manner that
departs from the analysis that would normally apply under the
Second Amendment, I concur only in the judgment.
opinion did not reflect a deliberate attempt to define the term ‘the people.’”
App’x 19. Yet the portion of Heller defining “the people” as “members of
the political community” appears in the section of the opinion that defines
the meaning of the clause “Right of the People.” 554 U.S. at 579-81.
14