The Second Amendment Rights of Undocumented Immigrants

Abstract

In 2008’s District of Columbia v. Heller, the Supreme Court, for the first time, held that the Second Amendment protects an individual right to bear arms. Challenges to various federal gun control laws immediately followed, including challenges to 18 U.S.C. § 922(g)(5)(a), which prohibits possession by an undocumented immigrant. Between 2008 and 2022, courts faced with challenges to 922(g)(5)(a) universally upheld it. Then the Court decided New York State Rifle and Pistol Association v. Bruen, in which it discarded the means-end balancing tests the courts of appeals had adopted, instead preferring a test focused on “history and tradition.” Under Bruen’s test, if a regulation was targeted at conduct protected by the Second Amendment, it was presumptively invalid, unless the government could identify an analogous law from the time of the Founding. New challenges were filed. Many courts have continued to uphold the constitutionality of 922(g)(5)(a), but others have found that it is unconstitutional. And at least two circuits have upheld the statute on the ground that undocumented immigrants are not part of “the people” protected by the Second Amendment.

This article is the first in-depth look at the application of Bruen’s test, as modified by the Court’s June 2024 decision in United States v. Rahimi, that addresses both the question of whether undocumented immigrants are part of “the people” entitled to Second Amendment protections and, if so, whether any of the historical analogues identified by the government serve to justify 922(g)(5)(a)’s complete ban on gun ownership. It concludes 1) that undocumented immigrants are part of “the people” because status is irrelevant to the question—it is physical presence in the United States that matters; and 2) none of the purported analogues support a categorical ban on undocumented immigrants possessing firearms. Instead, they support an individualized analysis where only the dangerous may be disarmed.