Earlier this summer, in United States v. Perez, a divided panel of the Second Circuit rejected a challenge to 922(g)(5)—the federal law prohibiting gun possession by undocumented immigrants. I missed the case at the time, but Law360 has an interesting write up on the decision and how it fits into broader litigation regarding immigrants’ gun rights. Perez itself raises some interesting questions about the basis for 922(g)(5)’s constitutionality and, more generally, the assume-without-deciding approach that many circuit courts have taken with regard to it and other categorical exclusions.
As the panel explained:
[O]ur practice in those cases has been to assume that a given firearm restriction implicates rights guaranteed by the Second Amendment and determine whether the restriction would nonetheless withstand the appropriate level of scrutiny. We see no reason to abandon that approach here.
We need not decide [whether undocumented immigrants like Perez have a constitutional right to possess firearms], because even if we were to assume that Perez has a constitutional right to possess firearms, we find that § 922(g)(5) is a permissible restriction when applied to the facts of this case.
This is a common way of addressing not only 922(g)(5) claims, but other forms of regulation as well—courts regularly assume that the relevant person, firearm, or activity is indeed covered by the Second Amendment, but can nonetheless be prohibited or otherwise regulated. The hard methodological issue is what the assume-without-deciding approach means for the development of doctrine, especially when that approach effectively becomes a rule of decision.
When a court recognizes its own “practice” and defers to it, the line between dicta and holding—never an easy one to draw—starts to get especially blurry. In Perez, the panel majority seems to treat the skip-step-one approach almost as a matter of stare decisis (“[w]e see no reason to abandon that approach”). And if the law would be upheld under intermediate scrutiny anyway, then a holding on whether Perez is covered by the Second Amendment would be unnecessary (and thus, arguably, dicta). But it also suggests that we’ll never get a holding on whether, for example, undocumented immigrants fall within the scope of the Second Amendment, unless and until a court concludes that the prohibition cannot survive intermediate scrutiny.
Judge Menashi’s concurring opinion would simply have held that “illegal aliens cannot invoke the right of the people to keep and bear arms under the Second Amendment.” Indeed, he suggests that the majority has effectively decided the same thing via a circuitous route that harms “American citizens”:
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.
Judge Menashi’s opinion, meanwhile, raises another difficult question of Second Amendment hydraulics, because it emphasizes that Perez’s activity (borrowing and firing a gun to break up a fight) falls within the “core” of the Second Amendment and should therefore be protected by more than intermediate scrutiny. Thus, Judge Menashi argues, the only way to justify the application of the federal prohibitor is to conclude that Perez falls entirely outside the Second Amendment. (He also discusses the history of laws disarming non-citizens; Catie Carberry (Duke Law ’21) and I have written on historical laws targeting “dangerous” groups and “outsiders.”)
The tricky thing with that kind of categorical reasoning is when—as here—it sets up a conflict between categorical protections (i.e., the use of guns in self-defense) and categorical exclusions (i.e., in Menashi’s approach, “illegal aliens”). Luke Morgan, who wrote a terrific student note on guns at protests, is currently working on a paper that explores how that kind of doctrinal rule vs. doctrinal rule gets resolved in various areas of constitutional doctrine. Sometimes, as in Perez, the categorical exclusion seems to trump the categorical protection. But sometimes the categorical protection seems to trump the categorical exclusion—as, for example, in R.A.V. v. City of Saint Paul, where Justice Scalia indicates that even unprotected speech like fighting words cannot be regulated on the basis of viewpoint.
According to the Law360 article, Perez’s lawyers declined to comment on whether they’re seeking en banc review or preparing a cert petition.