United States v. Nicolas Carpio-Leon

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 11-5063
NICOLAS CARPIO-LEON,
Defendant-Appellant.

Appeal from the United States District Court
for the District of South Carolina, at Orangeburg.
Margaret B. Seymour, District Judge.
(5:11-cr-00372-MBS-1)
Argued: September 21, 2012
Decided: December 14, 2012
Before TRAXLER, Chief Judge, and NIEMEYER and
MOTZ, Circuit Judges.
Affirmed by published opinion. Judge Niemeyer wrote the
opinion, in which Chief Judge Traxler and Judge Motz joined.
COUNSEL
ARGUED: Douglas Neal Truslow, Columbia, South Caro-
lina, for Appellant. Robert Frank Daley, Jr., OFFICE OF THE
UNITED STATES ATTORNEY, Columbia, South Carolina,
for Appellee. ON BRIEF: William N. Nettles, United States
2 UNITED STATES v. CARPIO-LEON
Attorney, J.D. Rowell, Assistant United States Attorney,
OFFICE OF THE UNITED STATES ATTORNEY, Colum-
bia, South Carolina, for Appellee.
OPINION
NIEMEYER, Circuit Judge:
After Nicolas Carpio-Leon, a citizen of Mexico, was
indicted for possessing firearms while being "illegally or
unlawfully in the United States," in violation of 18 U.S.C.
§ 922(g)(5), he filed a motion to dismiss the charge, contend-
ing that § 922(g)(5) violated his rights under the Second and
Fifth Amendments to the United States Constitution. The dis-
trict court denied Carpio-Leon’s motion, and Carpio-Leon
then pleaded guilty to that charge, as well as to an illegal
entry charge, reserving, as part of his plea agreement, the
right to appeal the district court’s conclusion that § 922(g)(5)
is constitutional.
Concluding that § 922(g)(5) is constitutional, we affirm. On
Carpio-Leon’s Second Amendment challenge, we conclude
that the scope of the Second Amendment does not extend to
provide protection to illegal aliens, because illegal aliens are
not law-abiding members of the political community and
aliens who have entered the United States unlawfully have no
more rights under the Second Amendment than do aliens out-
side of the United States seeking admittance. On Carpio-
Leon’s Fifth Amendment challenge, we conclude that prohib-
iting illegal aliens, as a class, from possessing firearms is
rationally related to Congress’ legitimate interest in public
safety.
I
Following a consensual search of Carpio-Leon’s home on
February 24, 2011, in Orangeburg, South Carolina, Immigra-
UNITED STATES v. CARPIO-LEON 3
tion and Customs Enforcement agents recovered a .22 caliber
Marlin rifle, a 9 mm Hi-Point model C pistol, and ammuni-
tion. Carpio-Leon admitted that he had stored the firearms in
his master bedroom and that he was in the United States ille-
gally. He was thereafter indicted in two counts charging him
with (1) possession of a firearm by an alien "illegally or
unlawfully in the United States," in violation of 18 U.S.C.
§ 922(g)(5)(A); and (2) illegal entry into the United States, in
violation of 8 U.S.C. § 1325(a)(2).
Carpio-Leon filed a motion to dismiss Count I on the
ground that § 922(g)(5) violates his rights under the Second
Amendment and the Due Process Clause of the Fifth Amend-
ment. At the hearing on the motion, he introduced evidence
that he and his wife had lived in Orangeburg for some 13
years and had three children, all of whom were born in the
United States; that he had no prior criminal record; that he
had filed income tax returns; and that "a .22 caliber and a 9
mm pistol could be the type of arms one would use for protec-
tion of their homes and children." He also stipulated that he
was in the United States illegally and that he had used a false
social security number to obtain a driver’s license.
The district court denied Carpio-Leon’s motion, concluding
that "Heller [554 U.S. 570 (2008)] and other Supreme Court
precedent foreclose [his] argument that aliens illegally present
in the United States are among those protected by the Second
Amendment." Alternatively, the court ruled that § 922(g)(5)
survives intermediate scrutiny, the relevant standard, because
"[g]iven Congress’s legitimate concerns about the dangers
potentially posed by individuals who have violated this coun-
try’s immigration laws and either entered or remain present
inside its borders illegally, § 922(g)(5)(A) reasonably
addresses the governmental objective of keeping firearms out
of the possession of illegal aliens." The court rejected Carpio-
Leon’s Fifth Amendment claim because it found, for the same
reasons given in its analysis of his Second Amendment claim,
4 UNITED STATES v. CARPIO-LEON
that § 922(g)(5) does not deprive Carpio-Leon of any funda-
mental constitutional right.
After the court denied his motion to dismiss, Carpio-Leon
entered a conditional guilty plea to both counts of the indict-
ment, reserving the right to appeal the issue of § 922(g)(5)’s
constitutionality. The court sentenced Carpio-Leon on Octo-
ber 25, 2011, to time served on Count I and to six months’
imprisonment on Count II, with both sentences to run concur-
rently. It ordered two years’ supervised release on Count I
and, as additional conditions, directed Carpio-Leon (1) "to
surrender to a duly-authorized immigration official for depor-
tation consideration in accordance with established proce-
dures provided by the Immigration and Naturalization Act, 8
U.S.C. § 1101 et seq." and (2) "not [to] re-enter the United
States for the duration of supervised release and not without
the approval of the United States Attorney General or the Sec-
retary of Homeland Security."
This appeal followed.
II
Carpio-Leon contends that possession of firearms typically
used for self-defense in one’s home is protected by the Sec-
ond Amendment, even when such possession is by an illegal
alien. Recognizing the historical analysis required in constru-
ing the Second Amendment, he argues that the Second
Amendment could not have been intended to exclude illegal
aliens from its scope because "in 1791, attitudes toward immi-
gration were the reverse of today’s attitudes" and "immigrants
—also known as ‘settlers’—were deemed absolutely neces-
sary to the development and survival of the new nation."
Carpio-Leon also argues that "there is no empirical evidence
demonstrating that undocumented workers (in their homes)[,]
the classification into which [he] falls[,] are any more danger-
ous to society than legal aliens or, for that matter, native born
United States citizens." Thus, he asserts, § 922(g)(5) is not
UNITED STATES v. CARPIO-LEON 5
narrowly tailored "to serve a compelling government inter-
est."
The government contends that the Second Amendment
does not protect illegal aliens because it "codified a preexist-
ing right [to bear arms] that historically has been enjoyed
[only] by law-abiding, responsible citizens, and illegal aliens
are necessarily not law abiding." In any event, it argues that
§ 922(g)(5) survives intermediate scrutiny by serving an
important interest in public safety. It also notes that Congress
has "broad power over immigration-related matters and can
choose to disarm illegal aliens."
We have not had occasion to address a Second Amendment
challenge to 18 U.S.C. § 922(g)(5). The Fifth, Eighth, and
Tenth Circuits, however, have upheld the provision in the face
of a Second Amendment challenge, and we have found no
court of appeals decision that has found it unconstitutional.
The Fifth Circuit and the Eighth Circuit held that the protec-
tion of the Second Amendment does not extend to illegal
aliens. See United States v. Portillo-Munoz, 643 F.3d 437, 442
(5th Cir. 2011), cert. denied, 132 S. Ct. 1969 (2012); United
States v. Flores, 663 F.3d 1022, 1023 (8th Cir. 2011) (per
curiam), cert. denied, No. 11-9452, 2012 WL 993946 (U.S.
June 25, 2012). And the Tenth Circuit avoided the question of
whether illegal aliens are protected by the Second Amend-
ment and upheld § 922(g)(5) because it passed intermediate
scrutiny. See United States v. Huitron-Guizar, 678 F.3d 1164,
1169–70 (10th Cir. 2012).
As we have previously observed, "[a]ny Second Amend-
ment analysis must now begin with the Supreme Court’s
recent seminal decision in Heller, which held that the Second
Amendment [providing that ‘the right of the people to keep
and bear Arms, shall not be infringed’] codified a ‘pre-
existing’ right that allows individuals to keep and bear arms."
United States v. Carter, 669 F.3d 411, 414 (4th Cir. 2012)
(citing District of Columbia v. Heller, 554 U.S. 570, 592, 595
6 UNITED STATES v. CARPIO-LEON
(2008)). In Heller, the Court, finding that the Second Amend-
ment protects an individual right to bear arms, struck down
the District of Columbia’s bans on handgun possession in the
home and on having a firearm in the home that is immediately
operable. Heller, 554 U.S. at 635. But in doing so, the Court
cautioned that the right to bear arms has limits. "Of course the
right [to bear arms] [is] not unlimited, just as the First
Amendment’s right of free speech [is] not." Id. at 595.
Thus, the Second Amendment does not guarantee the right
to possess for every purpose, to possess every type of weapon,
to possess at every place, or to possess by every person. See
United States v. Chester, 628 F.3d 673, 676 (4th Cir. 2010)
("Significantly, Heller recognized that the right to keep and
bear arms, like other Constitutional rights, is limited in scope
and subject to some regulation"); Carter, 669 F.3d at 415(explaining that under Heller, "the right to keep and bear arms
depends not only on the purpose for which it is exercised but
also on the relevant characteristics of the person invoking the
right"); Huitron-Guizar, 678 F.3d at 1166 ("The right to bear
arms, however venerable, is qualified by what one might call
the ‘who,’ ‘what,’ ‘where,’ ‘when,’ and ‘why’"). As the
Heller Court itself enumerated the limitations, the Constitu-
tion does not "protect the right of citizens to carry arms for
any sort of confrontation," 554 U.S. at 595; the right to bear
"arms" does not guarantee the right to possess every type of
weapon, id. at 627; and not every person has the right to pos-
sess a firearm—"[N]othing in our opinion should be taken to
cast doubt on long-standing prohibitions on the possession of
firearms by felons and the mentally ill," id. at 626-27. The
Court also noted that the "presumptively lawful regulatory
measures" it identified were only "examples" and that its list
did "not purport to be exhaustive." Id. at 627 n.26.
To apply Heller, we follow the two-step approach set forth
in Chester, asking first
whether the challenged law imposes a burden on
conduct falling within the scope of the Second
UNITED STATES v. CARPIO-LEON 7
Amendment’s guarantee. This historical inquiry
seeks to determine whether the conduct at issue was
understood to be within the scope of the right at the
time of ratification. If it was not, then the challenged
law is valid.
Chester, 628 F.3d at 680 (internal quotation marks and cita-
tions omitted). If, however, the regulation is found to burden
conduct that falls within the scope of the Second Amend-
ment’s protections, "we move to the second step of applying
an appropriate form of means-end scrutiny." Id.Employing this analytical structure here, we start by deter-
mining whether the scope of the Second Amendment includes
the protection of aliens who are illegally in this country.
Beginning with the text, the Second Amendment provides
that "the right of the people to keep and bear Arms shall not
be infringed." U.S. Const. amend. II (emphasis added). In pro-
viding its protection to "the people," the Amendment is distin-
guishable from the Fifth and Fourteenth Amendments, which
provide protections to "persons." As Heller noted, the term
"the people" is a "‘term of art,’" which is also used in the First
and Fourth Amendments, 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 con-
sidered part of that community.’" Heller, 554 U.S. at 580(quoting United States v. Verdugo-Urquidez, 494 U.S. 259,
265 (1990)).
Heller does not make clear, however, whether illegal aliens
can ever be part of the political community and therefore be
included in the class of persons labeled "the people." Heller
does frequently connect arms-bearing and "citizenship." For
example, its analysis of the phrase "right of the people" ends
by concluding, "We start therefore with a strong presumption
that the Second Amendment right is exercised individually
and belongs to all Americans." Heller, 554 U.S. at 581
8 UNITED STATES v. CARPIO-LEON
(emphasis added); see also id. at 595, 625, 635 (connecting
citizenship and the right to bear arms). We should be cautious,
however, in assuming that the Court defined "the people" as
excluding illegal aliens because the Court used Verdugo-
Urquidez to explain the meaning of "the people." In Verdugo-
Urquidez, the Court noted that its assumption in I.N.S. v.
Lopez-Mendoza, 468 U.S. 1032 (1984), that the Fourth
Amendment applies to illegal aliens is not "dispositive of how
the Court would rule on a Fourth Amendment claim by illegal
aliens in the United States if such a claim were squarely
before [it]." Verdugo-Urquidez, 494 U.S. at 272. Though
Verdugo-Urquidez certainly did not rule out the possibility
that illegal aliens have only limited Fourth Amendment rights,
it did not rule on whether illegal aliens were part of "the peo-
ple." Id. at 272–73. The Supreme Court’s precedent is there-
fore not clear on whether "the people" includes illegal aliens.
Here, we need not limit our analysis to the scope of the
term "the people" and thereby become enmeshed in the ques-
tion of whether "the people" includes illegal aliens or whether
the term has the same scope in each of its constitutional uses.*
*Were we to limit our analysis to the scope of the term "the people,"
we would also have to recognize that groups like women, Native Ameri-
cans, and blacks may not have been part of the political community at the
time of the founding but are today within the class that we refer to as "the
people." In this same vein, it was understood that Catholics could be dis-
armed in England prior to the founding, but again today they are within
the class that we refer to as "the people." The Heller Court accepted this
analytical approach when it determined what today may be classified as
"arms." It stated:
Some have made the argument, bordering on the frivolous, that
only those arms in existence in the 18th century are protected by
the Second Amendment. We do not interpret constitutional rights
that way. Just as the First Amendment protects modern forms of
communications, e.g., Reno v. American Civil Liberties Union,
521 U.S. 844, 849 (1997), and the Fourth Amendment applies to
modern forms of search, e.g., Kyllo v. United States, 533 U.S. 27,
35–36 (2001), the Second Amendment extends, prima facie, to all
instruments that constitute bearable arms, even those that were
not in existence at the time of the founding.
Heller, 554 U.S. at 582.
UNITED STATES v. CARPIO-LEON 9
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.’" Carter, 669 F.3d at 416 (emphasis
added) (quoting Heller, 554 U.S. at 635); see also United
States v. Moore, 666 F.3d 313, 319 (4th Cir. 2012) (holding
that a defendant with prior felony and violent crime convic-
tions "simply does not fall within the category of citizens to
which the Heller court ascribed the Second Amendment pro-
tection of ‘the right of law-abiding responsible citizens to use
arms in defense of hearth and home’" (quoting Heller, 554
U.S. at 635)); United States v. Masciandaro, 638 F.3d 458,
470 (4th Cir. 2011) (identifying the "fundamental," core right
of the Second Amendment as self-defense in the home by a
law-abiding citizen) (emphasis added), cert. denied, 132 S.
Ct. 756 (2011).
The Heller Court reached the Second Amendment’s con-
nection to law-abiding citizens through a historical analysis,
independent of its discussion about who constitutes "the peo-
ple." See Heller, 554 U.S. at 579-81. The Court read United
States v. Miller, 307 U.S. 174 (1939), to say that "the Second
Amendment does not protect those weapons not typically pos-
sessed by law-abiding citizens for lawful purposes." Heller,
554 U.S. at 625 (emphasis added). When looking at prior gun
regulation, the Court found that "[f]or most of our history, the
Bill of Rights was not thought applicable to the States, and the
Federal Government did not significantly regulate the posses-
sion of firearms by law-abiding citizens." Id. (emphasis
added). The Court was careful to note that its opinion should
not be read to limit the government’s ability to disarm indi-
viduals who cannot be trusted with firearms. See id. at 626(stating that "nothing in our opinion should be taken to cast
doubt on longstanding prohibitions on the possession of fire-
arms by felons and the mentally ill"). Finally, the Court con-
cluded that "whatever else [the Second Amendment] leaves to
future evaluation, it surely elevates above all other interests
10 UNITED STATES v. CARPIO-LEON
the right of law-abiding, responsible citizens to use arms in
defense of hearth and home." Id. at 635 (emphasis added).
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, see Chester, 628 F.3d at 680, and
thus to reach the conclusion that we do—that illegal aliens do
not belong to the class of law-abiding members of the politi-
cal community to whom the Second Amendment gives pro-
tection.
"[M]ost scholars of the Second Amendment agree that the
right to bear arms was tied to the concept of a virtuous citi-
zenry and that, accordingly, the government could disarm
‘unvirtuous citizens.’" United States v. Yancey, 621 F.3d 681,
684–85 (7th Cir. 2010) (quoting United States v. Vongxay,
594 F.3d 1111, 1118 (9th Cir. 2010) (citing Glenn Harlan
Reynolds, A Critical Guide to the Second Amendment, 62
Tenn. L. Rev. 461, 480 (1995); Don B. Kates, Jr., The Second
Amendment: A Dialogue, Law & Contemp. Probs., Winter
1986, at 143, 146)). For example, felons "were excluded from
the right to arms" because they were deemed unvirtuous.
Reynolds, supra, at 480; see also David Yassky, The Second
Amendment: Structure, History, and Constitutional Change,
99 Mich. L. Rev. 588, 626 (2000) ("The average citizen
whom the Founders wished to see armed was a man of repub-
lican virtue").
Colonial governments often barred "potential subversives"
from owning firearms. Joyce Lee Malcolm, To Keep and Bear
Arms: The Origins of an Anglo-American Right 140-41
(1994) (detailing colonial laws preventing "suspect popula-
tions" from owning firearms). In several colonial states,
refusal to swear allegiance to the state or the country war-
ranted disarmament. Saul Cornell & Nathan DeDino, A Well
UNITED STATES v. CARPIO-LEON 11
Regulated Right: The Early American Origins of Gun Con-
trol, 73 Fordham L. Rev. 487, 506 (2004) ("During the Amer-
ican Revolution, several states passed laws providing for the
confiscation of weapons owned by persons refusing to swear
an oath of allegiance to the state or the United States"); see
also Saul Cornell, "Don’t Know Much About History": The
Current Crisis in Second Amendment Scholarship, 29 N. Ky.
L. Rev. 657, 671 (2002) (describing the right to bear arms in
colonial Pennsylvania as a "civic right, one that was limited
to those members of the polity who were deemed capable of
exercising it in a virtuous manner"). Similarly, after Shays’
Rebellion, to obtain a pardon for taking up arms against the
state, Massachusetts required swearing allegiance to the state
and giving up firearms for three years. Cornell & DeDino,
supra, at 507–08.
Also, several early proposals for the Bill of Rights demon-
strate the understanding that the core protection of the Second
Amendment belongs to law-abiding citizens. Delegates asked
the Massachusetts Ratifying Convention to recommend bar-
ring Congress from "prevent[ing] the people of the United
States, who are peaceable citizens, from keeping their own
arms." 2 Bernard Schwartz, The Bill of Rights: A Documen-
tary History 681 (Leon Friedman et al. eds., 1971). The New
Hampshire convention similarly proposed that "Congress
shall never disarm any Citizen unless such as are or have been
in Actual Rebellion." Id. at 761.
Finally, the prefounding English right to bear arms supports
this limitation of Second Amendment rights. Cf. Heller, 554
U.S. at 592–93 (analyzing the English law prior to the found-
ing to interpret the operative clause of the Second Amend-
ment). In England, the right to bear arms allowed the
government to disarm those it considered disloyal or danger-
ous. See Patrick J. Charles, "Arms for Their Defense"?: An
Historical, Legal, and Textual Analysis of the English Right
to Have Arms and Whether the Second Amendment Should Be
12 UNITED STATES v. CARPIO-LEON
Incorporated in McDonald v. City of Chicago, 57 Clev. St. L.
Rev. 351, 376, 382-83 (2009); Malcolm, supra, at 123.
Carpio-Leon’s historical evidence does not controvert the
historical evidence supporting the notion that the government
could disarm individuals who are not law-abiding members of
the political community. Carpio-Leon argues that the histori-
cal "attitudes toward immigration were the reverse of today’s
attitudes" and that "[c]onsidering the country’s need for immi-
grants to settle frontier areas[,] . . . denying immigrants the
right to defend themselves and their families would have been
unthinkable." While this observation may be true, it does not
suggest that individuals who were not considered to be part of
the political community and who did not follow the communi-
ty’s rules were guaranteed the right to bear arms.
In reaching our conclusion that illegal aliens do not belong
to the class of law-abiding members of the political commu-
nity to whom the protection of the Second Amendment is
given, we do not hold that any person committing any crime
automatically loses the protection of the Second Amendment.
The Heller Court’s holding that defines the core right to bear
arms by law-abiding, responsible citizens does not preclude
some future determination that persons who commit some
offenses might nonetheless remain in the protected class of
"law-abiding, responsible" persons. We only hold here that
illegal aliens do not fall in the class of persons who are classi-
fied as law-abiding members of the political community for
the purpose of defining the Second Amendment’s scope. See
Portillo-Munoz, 643 F.3d at 440 (concluding that illegal
aliens are not protected by the Second Amendment because
"[i]llegal aliens are not ‘law-abiding, responsible citizens’");
Moore, 666 F.3d at 319–20 ("Moore’s three prior felony con-
victions for common law robbery and two prior convictions
for assault with a deadly weapon on a government official
clearly demonstrate that he is far from a law-abiding, respon-
sible citizen" and therefore is not protected by the Second
Amendment).
UNITED STATES v. CARPIO-LEON 13
And we readily confirm our limited holding as to illegal
aliens by their particular relationship to the United States.
Defining aliens as illegal emanates from "the power to expel
or exclude aliens [which is] a fundamental sovereign attribute
exercised by the Government’s political departments [that is]
largely immune from judicial control." Shaughnessy v. United
States ex rel. Mezei, 345 U.S. 206, 210 (1953) (emphasis
added). Thus, the crime of illegal entry inherently carries this
additional aspect that leaves an illegal alien’s status substan-
tially unprotected by the Constitution in many respects. See,
e.g., Zadvydas v. Davis, 533 U.S. 678, 693 (2001) (noting that
in Kaplan v. Tod, 267 U.S. 228, 230 (1925), "despite nine
years’ presence in the United States, an ‘excluded’ alien ‘was
still in theory of law at the boundary line and had gained no
foothold in the United States’"); see also Zadvydas, 533 U.S.
at 693 (noting the distinction between aliens who have and
have not "effected an entry into the United States" and citing
Leng May Ma v. Barber, 357 U.S. 185, 188-90 (1958) for the
proposition that there is a difference between an alien only
"paroled" into the United States and one who has "effected an
entry"); Reno v. American-Arab Anti-Discrimination Commit-
tee, 525 U.S. 471, 488 (1999) ("As a general matter—and
assuredly in the context of claims such as those put forward
in the present case—an alien unlawfully in this country has no
constitutional right to assert selective enforcement as a
defense against his deportation").
And because the regulation of aliens’ entry into the United
States draws on the exercise of national sovereignty, "the
responsibility for regulating the relationship between the
United States and our alien visitors has been committed to the
political branches of the Federal Government." Mathews v.
Diaz, 426 U.S. 67, 81 (1976). It is well settled that decisions
made by the political branches on immigration are subject
only to a "narrow standard of review." Id. at 82. The Supreme
Court, resting on the sovereign aspect of regulating aliens,
"has repeatedly emphasized that ‘over no conceivable subject
is the legislative power of Congress more complete than it is
14 UNITED STATES v. CARPIO-LEON
over’ the admission of aliens." Fiallo v. Bell, 430 U.S. 787,
792 (1977) (quoting Oceanic Navigation Co. v. Stranahan,
214 U.S. 320, 339 (1909)).
Thus, when Congress regulates illegal aliens by prohibiting
them from possessing firearms, see 18 U.S.C. § 922(g)(5), it
is functioning in a special area of law committed largely to
the political branches, see Shaughnessy, 345 U.S. at 210, and
on which we owe Congress special deference, Fiallo, 430
U.S. at 792. Indeed, in addition to making the possession of
firearms by illegal aliens a crime, Congress has also made
Carpio-Leon’s unexamined entry into the United States a
crime. See 8 U.S.C. § 1325(a); Plyler v. Doe, 457 U.S. 202,
219 n.19 (1982) (noting that "entry into the class [of illegal
aliens] is itself a crime").
For the reasons given, we hold that the Second Amendment
right to bear arms does not extend to illegal aliens, and there-
fore, without the need of proceeding to the second step of
Chester, we conclude that Carpio-Leon’s constitutional chal-
lenge under the Second Amendment must fail.
III
Carpio-Leon also contends that 18 U.S.C. § 922(g)(5) vio-
lates his right to equal protection under the Due Process
Clause of the Fifth Amendment. Based on his claim that the
right to bear arms in one’s home for protection is a fundamen-
tal constitutional right, he argues that we should apply strict
scrutiny in evaluating § 922(g)(5). Under strict scrutiny, he
maintains, the statute is unconstitutional because no empirical
evidence exists to justify "the statutory ban on undocumented
workers’ right to bear arms in their homes for the protection
of their families."
The government contends that 18 U.S.C. § 922(g)(5) is
subject to a rational basis review because illegal aliens do not
have a fundamental right to bear arms. Under the rational-
UNITED STATES v. CARPIO-LEON 15
basis level of scrutiny, which is a low hurdle, it notes that the
government has a legitimate interest in public safety.
There is no disputing that illegal aliens are "persons" pro-
tected by the Fifth Amendment. See Mathews, 426 U.S. at 77("Even one whose presence in this country is unlawful, invol-
untary, or transitory is entitled to [the] constitutional protec-
tion" of the Fifth and Fourteenth Amendments); Plyler, 457
U.S. at 210 ("[E]ven aliens whose presence in this country is
unlawful, have long been recognized as ‘persons’ guaranteed
due process of law by the Fifth and Fourteenth Amend-
ments"). And when, as here, no fundamental constitutional
right is at stake, the appropriate standard of review is the
rational-basis review. See Mathews, 426 U.S. at 82-83;
Huitron-Guizar, 678 F.3d at 1167 (applying rational basis
review to equal protection challenge of § 922(g)(5));
Vongxay, 594 F.3d at 1119 (applying rational basis review to
prohibition against felons possessing firearms "because the
right established by Heller does not apply to felons").
Carpio-Leon cannot show that there is no rational relation-
ship between prohibiting illegal aliens from bearing firearms
and the legitimate government goal of public safety. To the
contrary, courts have identified numerous legitimate reasons
why it would be dangerous to permit illegal aliens to arm
themselves. For instance, illegal aliens are "harder to trace
and more likely to assume a false identity[,] [o]r Congress
may have concluded that those who show a willingness to
defy our law are candidates for further misfeasance or at least
a group that ought not be armed when authorities seek them."
Huitron-Guizar, 678 F.3d at 1170. Illegal aliens are "likely to
maintain no permanent address in this country, elude detec-
tion through an assumed identity, and—already living outside
the law—resort to illegal activities to maintain a livelihood."
United States v. Toner, 728 F.2d 115, 128-29 (2d Cir. 1984)
(internal quotation marks omitted) (upholding precursor to
§ 922(g)(5)). More generally, the Supreme Court has "firmly
and repeatedly endorsed the proposition that Congress may
16 UNITED STATES v. CARPIO-LEON
make rules as to aliens that would be unacceptable if applied
to citizens." Demore v. Kim, 538 U.S. 510, 522 (2003). Con-
gress therefore surely can rationally distinguish between legal
aliens and illegal aliens.
The Omnibus Crime Control and Safe Streets Act of 1968
itself advances a rational basis for § 922(g)(5)’s prohibitions,
finding that the possession of firearms by certain classes of
persons, including "aliens who are illegally in the country"
creates:
(1) a burden on commerce or threat affecting the free
flow of commerce,
(2) a threat to the safety of the President of the
United States and Vice President of the United
States,
***
(4) a threat to the continued and effective operation
of the Government of the United States and of the
government of each State guaranteed by article IV of
the Constitution.
Pub. L. No. 90-351, § 1201, 82 Stat. 236.
Carpio-Leon cites empirical studies that, he contends, show
that undocumented workers are no more dangerous to society
than are native born United States citizens. But the usefulness
of such studies are at best limited and certainly do not focus
on the class of illegal aliens, which is the basis for
§ 922(g)(5). Comparing incarceration rates of men born in the
United States with the incarceration rates of foreign-born men
does not establish that unlawful entrants are less dangerous.
Those data compare incarceration rates based on a person’s
place of birth, not on whether a person is lawfully or unlaw-
fully present in the United States. The other evidence cited by
UNITED STATES v. CARPIO-LEON 17
Carpio-Leon is a comparison between the overall level of
crime in the United States with the number of unlawful
entrants. But again, this comparison is not useful because of
the high number of variables. Carpio-Leon simply cannot
show that Congress acted irrationally in concluding that those
who are in the United States illegally should not be allowed
to possess firearms.
Accordingly, we conclude that 18 U.S.C. § 922(g)(5) sur-
vives rational scrutiny and is, therefore, also constitutional
under the Fifth Amendment.
The judgment of the district court is
AFFIRMED.