On May 23, in United States v. Jimenez-Shilon, the 11th Circuit rejected a Second Amendment challenge to 18 U.S.C. § 922(g)(5)(A), which prohibits firearm use or possession by any “alien” who is “illegally or unlawfully in the United States.” The holding itself is in some ways unremarkable – it joins every other federal circuit court that has considered the issue (now eight in all, according to the majority) in upholding § 922(g)(5) against challenges since Heller. There are, however, several noteworthy peculiarities about the opinion, not least of which is the lengthy, heterodox self-concurrence by Judge Newsom, who also wrote the majority opinion for the panel.
Quick factual and procedural background: Ignacio Jimenez-Shilon was a foreign national who had lived in the United States, without a valid visa or residency permit, for more than two decades. In 2019, he was arrested for brandishing a firearm in a public place – but the indictment charged him with illegal possession of a firearm by a disqualified person under § 922(g)(5), rather than with assault or some other crime related to brandishing. He did not dispute his guilt (most of the incident was caught on surveillance video), but he requested an evidentiary hearing to establish his connections to the United States. The court denied this request, and proceeded to sentencing.
This brings us to this appeal and decision. Instead of applying some type of intermediate scrutiny for the Second Amendment claim, as is now the norm in federal courts, Judge Newsom relies entirely on a “text and history” approach. The “text” part of this analysis looks at the Second Amendment itself, and in this case, just one word: “people.” The opinion then delves into the question of whether noncitizens or foreigners fell within the Founding era’s public meaning of “the people,” at least when it occurs in the Constitution. Quoting a wide array of Founding-era documents and contemporary scholarship, the opinion concludes that “the people” included many noncitizens in most sections of the Constitution, but not when it is used in the Second Amendment, because the Amendment “codified” pre-existing common law rights, which excluded most noncitizens. In other words, according to Judge Newsom, the right to bear arms never applied to noncitizen immigrants like Mr. Jimenez-Shilon, except where they had taken steps to affirm (legally) their association with and support for the new Republic. On that note, the majority concludes that evidence Mr. Jimenez wanted to present at his hearing – showing personal connections with this country, including a child born here – would not have offset his failure to secure legal permanent residency.
The opinion describes itself as “originalist,” but it is worth noting that it is a 1789-centered “public meaning” originalism, rather than the 1868-centered originalism that has been appearing in the amici briefs and legal arguments of many gun-rights advocacy groups. A recent trend among gun rights advocates has been to shift, or at least expand, the timeframe for the original meaning of the Second Amendment so that it includes the Fourteenth Amendment, which incorporated previously existing Constitutional rights against the states. This certainly makes sense when the legal challenge is brought against a state law – incorporation is a necessary step in that case. The current case is about a federal law, so incorporation is not an issue – perhaps that explains why the majority never mentions what the Second Amendment meant when it was channeled through the Fourteenth Amendment. But some of the “Second Founding” originalists would say there is another reason, besides restricting state powers, to focus on 1868 rather than 1789-92 – it was a time when the Union reinvented itself and reinterpreted its understanding of many of the rights in the Constitution, even as they pertain to the federal government.
At the same time, Reconstruction-era legislative history also provides more material supporting the idea that personal self-defense is a part of the right to bear arms – and most of the litigation over gun rights today is focused on the right to arm oneself for self-defense, rather than a right to serve in the militia or to take up arms against a government that turns despotic. “Public meaning” originalism discerns original meaning by focusing on the presumed audience of the communication, rather than the subjective intent of the author or speaker; an older form of originalism would have focused on the views or intentions of the Framers themselves. In any case, this opinion is significant not only for its “text-and-history” approach (replacing the more widely used intermediate scrutiny), but for doubling down on Founding-era originalism.
One interesting feature of the opinion is that it drops the “tradition” from the “text-history-tradition” (THT) rubric championed by many gun rights advocates (I have discussed THT previously here, and other authors have written about it for this blog here, here, here, and here). The majority opinion starts with “text” (“people” in the 2A), but mostly focuses on “history” in the sense of Founding-era indicia of who was included in “the people” when in the context of gun rights. Judge Newsom acknowledges Jimenez-Shilon would have been part of “the people” in the broadest sense in which the Framers used the term but says the Second Amendment codified a common-law right to bear arms that would have excluded individuals like Jimenez-Shilon from its coverage. Missing from the majority opinion is any reference to “tradition” – the final “T” of the THT rubric.
This omission becomes an express repudiation in footnote 2 of Judge Newsom’s self-concurrence:
. . .[I]t has never been clear to me what work “tradition” is supposed to be doing in the tripartite “text, history, and tradition” formulation. The duly adopted and ratified text of the Second Amendment, as originally (and thus historically) understood, governs the interpretive inquiry. To the extent that “tradition” is meant to stand in for the original (i.e., historical) public meaning of the words on the page, it is duplicative. And to the extent that it is meant to expand the inquiry beyond the original public meaning— say, to encompass latter-day-but-still-kind-of-old-ish understandings—it misdirects the inquiry.
In other words, Judge Newsom discards the “tradition” part of THT, because it is either redundant or anti-originalist. The self-concurrence also frames text-history analysis as being the same thing as the first step in two-tiered intermediate scrutiny: “I’m on board with step one, which calls for an originalist inquiry of the sort that (I hope) characterizes the majority opinion in this case.” He then proceeds to argue that the next step of intermediate scrutiny is both an inappropriate judicial invention, and a rule too indeterminate (“slippery”) to safeguard an important right. He then argues, for three pages, that the Eleventh Circuit has never actually adopted a means-end scrutiny approach for the Second Amendment in a published opinion.
Presumably, the “tradition” part of THT would refer to entrenched case precedent and longstanding statutes from the time after the Second Amendment made its way into our Constitution. These rules and rulings have stood the test of time, and they must have reflected former generations’ assumptions about the meaning of the Second Amendment itself. Justice Scalia’s carve-out for “longstanding prohibitions” in Heller probably illustrates the idea behind the “tradition” part of THT; Judge Newsom’s opinion suggests a willingness to reassess and possibly discard “longstanding prohibitions” in light of the common-law rules that the Second Amendment “codified.”
The last three pages of the self-concurrence are more adventuresome. Judge Newsom moves on to question (attack, really) all balancing tests or means-end scrutiny for constitutional rights, with a focus on Free Speech cases – this is the part of Jimenez-Shilon likely to generate the most academic buzz, as he sets forth the case for a new originalist approach to Free Speech. The case itself does not involve any First Amendment issues, but Judge Newsom prefaces this section by acknowledging it is “more a bookmark for future reflection and inquiry than anything else.” It is probably not a coincidence that the Eleventh Circuit published this opinion on the same day as Judge Newsom’s opinion in the landmark First Amendment case NetChoice v. Attorney General of Florida. The NetChoice opinion follows traditional strict and intermediate scrutiny analysis – the very approach Judge Newsom debunks in his self-concurrence in Jimenez-Shilon. My hunch is that he played it safe in NetChoice because the case is likely to go to the Supreme Court at some point, and it is more likely that other Circuits will follow his lead in the nearly identical cases pending there. I think he intended Jimenez-Shilon, or at least his concurrence there, to be a companion case to NetChoice, where he explains what he really thinks about Free Speech. And, instead of nascent Second Amendment jurisprudence borrowing concepts from other areas of Constitutional-civil rights law (he calls 2A law “virgin territory”), Judge Newsom hopes to use a Second Amendment case to break new ground in Free Speech law and other areas.
One irony of the case is his rhetorical reference to “freedom” in the last paragraph (he calls balancing tests “freedom-diluting”). This conceptualizes “freedom” merely as the absence of government interference or control; it ignores the fact that citizens often experience oppression or loss of autonomy at the hands of one another. When the government protects its citizens from harm by their peers – bullying, threats, assaults, arson, defrauding, libel, slander, and so on – it must necessarily interfere with the “freedom” of the would-be perpetrators. This brings us back to how this case started: Mr. Jimenez-Shilon, while intoxicated at a gas station taco stand in Tampa, “pulled a pistol out of his waistband and placed it on a table near another customer,” (with a live round in the chamber) and “then pointed it around the seating area and in the direction of other diners.” (from the Government’s briefs here and here). Rather than charging him with assault or some other crime related to the misuse of a firearm, the government charged him with illegal possession of the gun – a common occurrence, based on my research. (The government may find illegal possession charges easier to prove, or perhaps prosecutors prefer whatever charges would carry the longest sentence). The nature of the charges allowed Mr. Jimenez to reframe the case, and his appeal, around his right to bear arms – impliedly for self-defense purposes under Heller. And the Second Amendment framing of the case allowed the Court of Appeals to treat it as a potential infringement of the right to arm oneself for self-defense and the best jurisprudential approach to protect that “freedom.”
Stepping back from this opinion for a moment, regardless of who could own guns in the pre-1789 common-law era, there are modern policy justifications for § 922(g)(5) – the same justifications I have offered as support for felon-in-possession laws. Interpersonal gun violence disproportionately occurs in vulnerable, poor, and underserved urban neighborhoods and communities. High crime rates mean many guns stolen from unoccupied cars and dwellings, which in turn resupply black markets for gun that are hard to trace to those who use them in crimes. While high-crime areas might mean more occasions to engage in lawful self-defense, high population density also makes reckless or negligent behavior by gun owners – like that displayed by Mr. Jimenez-Shilon – more likely to result in injuries and fatalities.
Apart from the pros and cons of §922(g)(5), I have two closing observations about this opinion itself. First, it highlights a growing division between two ideological groups formerly found together under the big tent of conservative-leaning jurisprudence – constitutional originalists and the law-and-economics crowd. Judge Newsom makes a compelling case that balancing tests cannot coexist with originalism, but Law & Econ is all about weighing costs and burdens. Newsom’s strict originalism has no place for Coase, Posner, and Becker.
The second observation is that the language and logic of the opinion would support some types of gun control not currently on the books – such as conditioning gun ownership on taking a loyalty oath to the state and federal government. The opinion even quotes Adam Winkler for the point that colonial governments limited gun ownership to those who would affirm allegiance to the Crown and/or the local authorities. While I agree with the Founding-era Quakers that loyalty oaths are abominable, I wondered after reading this opinion if these judges would, hypothetically, uphold a law that required loyalty oaths for gun owners, or even one that disqualified those who refuse to stand for the national anthem or the pledge of allegiance from obtaining a gun permit. The strict originalist approach to the Second Amendment taken in this opinion could support some gun restrictions as easily as it could invalidate others – including gun restrictions that would not have survived scrutiny under more conventional jurisprudence.