Litigation Highlight: Eighth Circuit Rejects Challenge to Illegal-Alien Prohibition at Bruen Step One
On April 4, the Eighth Circuit issued a published decision in United States v. Sitladeen rejecting a post-Bruen challenge to the federal ban on “alien[s] . . . illegally or unlawfully in the United States” possessing firearms. The decision employed a different “step one” analysis than the Fifth Circuit panel in Rahimi, ultimately focusing on status rather than conduct to determine whether the Second Amendment is implicated. The decision in Sitladeen also relied heavily on pre-Bruen cases, illustrating the continued relevance of decisions applying Heller and using a textual-historical analysis to determine the scope of the Second Amendment.
The plaintiff, a Canadian citizen and fugitive (subject to an outstanding Canadian arrest warrant for murder), was stopped in Minnesota with 67 guns and a number of high-capacity magazines and indicted for possessing firearms as an illegal alien in violation of 18 U.S.C. § 922(g)(5). The district court initially denied Sitladeen’s motion to dismiss under the Second Amendment, relying on the Eighth Circuit’s 2011 one-paragraph per curiam decision in United States v. Flores. Flores held that “the protections of the Second Amendment do not extend to aliens illegally present in this country.” That decision favorably cited the Fifth Circuit’s 2011 opinion in United States v. Portillo-Munoz upholding 922(g)(5):
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 such as Portillo, and we hold that section 922(g)(5) is constitutional under the Second Amendment.
After Sitladeen appealed to the Eighth Circuit, the Supreme Court decided Bruen. The appellate panel requested supplemental briefing, in which Sitladeen argued that Bruen required the panel to overrule Flores. The panel disagreed, holding that Flores’ step-one analysis was consistent with the first step of the Bruen test because the judges there “reached [their] conclusion by considering—consistent with what Bruen now requires—whether the conduct regulated by § 922(g)(5)(A) was protected by the plain text of the Second Amendment.” The opinion observed that other courts have criticized this approach and argued in favor of “constru[ing] the phrase broadly at the outset of the analysis and then consider[ing] whether history and tradition support the government’s authority to impose the regulation.” While the panel noted concern that a more probing inquiry into whether the defendant is within “the people” protected by the Second Amendment “might enable some courts to manipulate the Second Amendment’s ‘plain text’ to avoid ever reaching Bruen’s ‘historical tradition’ inquiry,” the judges ultimately read Bruen to essentially confirm the mode of inquiry in Flores. Therefore, the panel found itself bound by Flores’ determination “that unlawful aliens are not part of ‘the people’ to whom the protections of the Second Amendment extend,” and rejected Sitladeen’s Second Amendment challenge.
Sitladeen also argued that 922(g)(5) is invalid under the Fifth Amendment’s equal protection clause because it treats illegal aliens differently from citizens with respect to the right to keep and bear arms. The panel applied rational basis review—rejecting Sitladeen’s argument for heightened scrutiny—and concluded that “there is a rational relationship between prohibiting unlawfully present aliens from possessing firearms and achieving the legitimate goal of public safety.” Finally, the panel rejected various challenges to the sentence imposed by the district judge.
The most notable aspects of Sitladeen are its focus on status rather than conduct at Bruen “step one,” and its decision to follow pre-Bruen circuit precedent finding certain individuals outside the scope of the Second Amendment based on their status alone. The Fifth Circuit panel in Rahimi, by contrast, read Bruen to endorse an expansive definition of “the people” covered by the Second Amendment. That decision held that the reference to “law-abiding, responsible citizens” was “shorthand” covering only the presumptively-lawful regulations listed in Heller (laws regulating “groups that have historically been stripped of their Second Amendment rights”). Rahimi thus largely embraced the view espoused by then-Judge Amy Coney Barrett in her dissent in Kanter v. Barr: that the “political community” comprising those with Second Amendment rights is broad, and “the question is whether the government has the power to disable the exercise of a right that they otherwise possess, rather than whether they possess the right at all.” Sitladeen, by contrast, holds that courts are still required to begin with a threshold textual analysis of “the people” who possess Second Amendment rights, and that the category of those who do not possess such rights may be broader than those the Founders disarmed.
The approach adopted in Sitladeen has certain advantages. First, it would be analytically awkward for Bruen to set out a two-step test (almost every judge to apply the decision has divided it into two inquiries), but then require as the substantive element of each step an examination into the same historical evidence. It’s hard to see what role the first step would play, and Bruen clearly mandates some initial determination of whether “the Second Amendment’s plain text covers an individual’s conduct.” Second, it’s tough to square Heller’s discussion of “the people” as comprising “the political community” with a history-only approach. For the proposition that “‘the people’ . . . refers to all members of the political community,” Heller cites to the Court’s 1990 decision in United States v. Verdugo-Urquidez. Verdugo-Urquidez dealt with the question of whether and how the Fourth Amendment applies to actions against aliens outside of the United States, and it required courts to assess whether an illegal alien has “substantial connections” with the United States that give rise to Fourth Amendment rights. As described in a 2011 law review article, courts have taken different approaches when applying Verdugo-Urquidez to Fourth Amendment claims by illegal immigrants.
The larger point is that, in the Fourth Amendment context, courts often perform a detailed analysis of an illegal alien’s status (whether and how the individual entered the United States, and for how long) to determine whether the constitutional protection applies. Given Heller’s reliance on Verdugo-Urquidez, it’s difficult to read that opinion, and Bruen’s affirmation of it, as prohibiting broader status-based exclusions (not directly rooted in historical tradition) in the Second Amendment context. This is especially true when one considers that alienage-based restrictions on firearm possession were rare or nonexistent at the time of the Founding. If anything, Verdugo-Urquidez suggests a default rule of exclusion for illegal aliens, coupled with an examination of whether the defendant’s specific factual circumstances bring him or her inside the Second Amendment’s scope. Pre-Bruen appellate decisions occasionally employed this very analysis, with the Seventh Circuit holding in 2015 that an illegal immigrant was within “the people” protected by the Second Amendment because he had lived in the country for over 20 years, developed family and social connections, and attended public schools. In Meza-Rodriguez, the panel ultimately held that “Congress’s interest in prohibiting persons who are difficult to track and who have an interest in eluding law enforcement is strong enough to support” 922(g)(5)’s constitutionality.
Sitladeen is also notable in following pre-Bruen precedent (Flores and Portillo-Munoz) to decide the case at “step one.” As Jake Charles has written, it is somewhat odd that Rahimi failed to even mention the 2011 decision in Portillo-Munoz (a prior precedential decision from the Fifth Circuit)—even as the Rahimi panel grounded its conclusions in the very case (Heller) that Portillo-Munoz purported to apply. This indicates a brewing circuit split about whether pre-Bruen cases are still good law to the extent they analyze the textual-historical scope of the Second Amendment. Rahimi squarely presents the issue, and it’s one of the reasons I expect the Court to grant certiorari in that case.
One other interesting aspect of Sitladeen is that the district court relied in part on Sitladeen’s prior firearms-related convictions, under Canadian law, to depart upwards in sentencing (these included “possession of a prohibited or restricted firearm with ammunition, possession of a firearm contrary to a prohibition order, failure to comply with a probation order, carrying a concealed weapon, and assault causing bodily harm”). As the panel opinion describes:
Because Sitladeen’s criminal record in Canada included “erratic and violent behavior and multiple illegal firearms possession convictions,” the court determined that the appropriate criminal history category was III, not I.
The Eighth Circuit rejected Sitladeen’s sentencing challenges, but it’s interesting to consider more broadly the issue of judicial reliance on firearms-related convictions in countries with stricter gun regulation to impose a higher sentence on a criminal defendant prosecuted and convicted in the U.S. (a similar issue may arise when a judge in a state with little gun regulation, such as Montana, sentences a defendant with a prior firearms-related conviction in a state with much stricter gun laws, such as California). Prior state-law convictions are generally counted when calculating a defendant’s criminal history category, and the sentencing guidelines authorize upward departures based on “[p]rior sentence(s) not used in computing the criminal history category,” such as foreign or tribal convictions. To the extent these prior convictions simply illustrate a lack of respect for the law, one would imagine they should carry similar weight as other state- or foreign-law convictions. And some judges, such as a district judge in Maine in a 2008 case, have found that Canada’s stricter gun laws support sentencing a defendant convicted of an offense involving illegal transportation of firearms into Canada with the base offense level set forth in §2M5.2 (which “assumes that the offense conduct was harmful or had the potential to be harmful to a security or foreign policy interest of the United States”). But this is an area where judges have a great deal of discretion and may take different approaches, depending upon their own view of the “wrongness” of foreign criminal conduct and the propriety of stricter gun regulation generally.