Muñoz and Alienage-Based Gun Restrictions

Rahimi was not the only decision issued by the Supreme Court on June 21 with potential consequences for federal gun regulation.  The Court also handed down Department of State v. Muñoz, in which a six-justice majority (divided along ideological lines) held that an American citizen has no fundamental liberty interest under the Due Process Clause in the admission of her noncitizen spouse to the country.  The decision, and its analysis of the history of federal discretion over immigration, is potentially informative for Second Amendment cases dealing with alienage restrictions such as the federal ban on unauthorized immigrants possessing firearms.

In Muñoz, an American citizen married a man from El Salvador.  The citizen’s husband then applied for an immigrant visa to join her in the United States.  His application was denied due to a suspected gang affiliation and Muñoz sued, arguing that “the State Department had abridged Muñoz’s constitutional liberty interest in her husband’s visa application by failing to give a sufficient reason” for the denial.  Justice Barrett’s opinion for the Court used a historical frame to find “that the right to bring a noncitizen spouse to the United States is [not] ‘deeply rooted in this Nation’s history and tradition’”—the test for fundamental rights under Washington v. Glucksberg.  Barrett noted that “[t]he United States had relatively open borders until the late 19th century,” prior to the emergence of immigration restrictions (which were, initially, restrictions motivated by discrimination against certain nationalities including Chinese immigrants).  As Professor Deep Gulasekaram notes, “[t]he concepts of unlawfully present migrants, as defined by present-day federal law, and immigration or criminal consequences for noncitizens’ firearm possession are [similarly] mid- to late twentieth-century constructions.” 

Yet, per Justice Barrett’s analysis in Muñoz, “[f]rom the beginning, the admission of noncitizens into the country was characterized as ‘of favor and not of right.’”[1]  Barrett’s opinion also relies on the fact that subsequent federal actions related to immigration often gave no special consideration to citizen spouses and, in fact, “erected serious impediments to a person’s ability to bring a spouse into the United States.”[2] According to the opinion, Congress “has never made spousal immigration a matter of right . . . [and] qualifications and restrictions have long been the norm.”  Thus, the Muñoz majority rejected the due process claim.  The three dissenting justices, in an opinion by Justice Sotomayor, would have found the State Department’s unreasoned denial to burden the fundamental right of marriage and requiring the department to provide Muñoz with some basis for its decision.

Federal law bans unauthorized immigrants and individuals in the country pursuant to certain nonimmigrant visas from possessing guns or ammunition.  Courts have split on the constitutionality of the restriction post-Bruen.  The Eighth Circuit upheld the law, finding itself bound by pre-Bruen precedent that unauthorized immigrants are textually outside of “the people” with Second Amendment protections.  Many district courts have upheld the law by analogizing to Founding-era loyalty oaths at step two of Bruen, and the Eleventh Circuit’s pre-Bruen decision in Jimenez-Shilon conducted a heavily historical analysis and observed that “aliens could not surreptitiously enter a foreign nation in violation of the immigration prerogatives of the sovereign and expect to receive all the rights and protections of the citizenry.”  Several district courts, including a judge in the Western District of Texas, have struck down the restriction as inconsistent with historical tradition.  The Texas decision in Sing-Ledezma emphasized that “‘illegal immigration’ did not exist when the Second Amendment was ratified in 1791 [and that] there had been and continued to be a large influx of foreigners coming to the United States without having been previously vetted and without having their belongings searched or weapons seized.”  Scholars have made similar observations, with Professor Gulasekaram arguing that unlawful migration simply has not been viewed as a societal problem throughout much of American history and that “[a]ny comparisons that might be made [to Founding-era laws] operate at a level of generality that Bruen and subsequent lower court cases do not countenance.”

When read together with Rahimi, however, Muñoz provides some clues as to how the Court’s conservative majority might view alienage-based gun restrictions through a historical lens.  The decision suggests the Court may in fact adopt the very high level of generality that early returns cast doubt upon.  Justice Barrett’s opinion eschews jot-for-jot comparisons and any search for a specific historical analogue to the modern visa process.  Instead, operating at a higher level of generality, she asserts that American tradition demonstrates longstanding government discretion over the admission of citizens’ alien spouses (and, as a corollary, no requirement to provide reasons for exclusion in that context).  To me, Muñoz might be read to support upholding alienage-based restrictions at step two of the Bruen analysis.  Just as the government was historically free to decide whether to admit or exclude alien spouses and immigrants themselves, under the Barrett analysis, the government might historically have been free to prohibit arms-keeping and bearing by immigrants even if there are no specific laws to point to from early America that actually did so.  There are differences, to be sure, but the historical analysis is potentially illuminating.[3]

That same day, Justice Barrett wrote in her Rahimi concurrence that the assumption “that founding-era legislatures maximally exercised their power to regulate . . .  [is] flawed.”  Taken together, then, these pronouncements suggest that Barrett—one of the most important swing votes in Second Amendment cases—is on board with a broad conception of historical regulatory power in the immigration realm.