The Second Amendment Rights of Noncitizens

This post is based on a paper that was presented at the 2024 Firearms Law Works-In-Progress Conference. The Conference is held each year on a home-and-away basis with the University of Wyoming Firearms Research Center. This post also appears on the FRC’s Forum.

Since the Supreme Court’s landmark decision in New York State Rifle & Pistol Ass’n v. Bruen, numerous provisions of federal law governing the possession of firearms have come under attack by criminal defendants. Chief among those provisions is 18 U.S.C. § 922(g)(1), which imposes a lifetime ban on the possession of firearms by felons. Trailing closely behind is § 922(g)(3), which disarms users of illegal drugs. One provision, however, has largely flown under the radar. That provision, § 922(g)(5), disarms anyone unlawfully present in the United States and the holders of nonimmigrant visas.[1] Given the former’s violation of U.S. immigration law and the latter’s nonpermanent status, it may be tempting to consider those in both groups as outside of “the people” protected by the Second Amendment. Indeed, some courts since the U.S. Supreme Court issued Bruen have done just that. This conclusion, however, fails to give adequate consideration to courts’ broad formulations of “the people” outside the Second Amendment context.

Exactly who the framers were referencing by the term “the people” throughout the Constitution, including in the First, Second, and Fourth Amendments, is not entirely clear. Most agree that this term is not merely coextensive with U.S. citizenship, but they disagree on the extent to which it applies to noncitizens (both those physically present in the United States and abroad). Although not a model of clarity, the Supreme Court held in United States v. Verdugo-Urquidez that “the people” “refers to a class of persons who are part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community.” The Supreme Court has never clarified just how “sufficient” an alien’s “connection” with the United States need be before he or she is counted among “the people,” and many lower courts have not imposed an exacting test. For instance, courts have held that student visaholders and even tourists who fraudulently obtained visas may invoke the protections of the Fourth Amendment. Ironically, a relatively weak “substantial connection” test in the context of aliens within the United States makes sense. The facts of Verdugo-Urquidez concerned the search of a foreign residence of a noncitizen who had no substantial connection to the United States. By contrast, the Supreme Court has routinely held that aliens in the United States—sometimes even those present illegally—enjoy many constitutional rights, such as those protections afforded to criminal defendants under the Fifth and Sixth Amendments. It is true that the Fifth and Sixth Amendments deal largely with criminal defendants, but the Fourth Amendment applies regardless of whether one has been formally charged with a crime.

The First Amendment rights of noncitizens also provide a useful analogy. Resident aliens’ speech rights are roughly coextensive with those of citizens. One major exception is that Congress has wide latitude to regulate admission and exclusion of aliens on speech grounds that would not be acceptable if applied to U.S. citizens. For instance, the Supreme Court upheld the removal of three permanent residents based on their memberships in the American Communist Party. Just this past term, the Supreme Court held that a citizen does not have a fundamental liberty interest in her noncitizen spouse being admitted to the country. Although the latter was not a First Amendment case, these decisions are consistent with Congress’ broad powers over alien admissibility and the judiciary’s traditional deference to those powers. Indeed, in an analogous context, the Immigration Code makes deportable any violation of a firearms offense.[2]

That backdrop brings us to § 922(g)(5)(A), which pertains to undocumented immigrants. In recent cases dealing with this provision, the government typically makes two arguments: (1) that “the people” of the Second Amendment does not include undocumented aliens, and (2)—assuming it does—the historical tradition of disarming purportedly dangerous and disloyal groups serves as an appropriate analogue to § 922(g)(5)(A). Assuming from the above analysis that noncitizens in the country are indeed part of “the people,” the government is left to argue that undocumented aliens are like those groups disarmed at the Founding. That logic is tough to square with the Court’s recent decision in United States v. Rahimi, where the majority concluded only that “[a]n individual found by a court to pose a credible threat to the physical safety of another may be temporarily disarmed consistent with the Second Amendment.” To be sure, Rahimi noted in dicta that the government might be able to disarm entire categories of people “thought by a legislature to present a special danger of misuse,” but studies indicate that immigrants, including those present unlawfully, commit crime at lower rates than native-born U.S. citizens. That is not to say that there are not important governmental and societal interests served by preventing and deterring illegal immigration. But Bruen and Rahimi make it clear that the government cannot simply designate a group as “dangerous” and disarm everyone within it without some justification. The colonial laws relied upon by the government in § 922(g)(5)(A) cases targeted enemies and suspected traitors like Loyalists for obvious reasons. Today’s unlawful aliens, many of whom are desperate to escape poverty and violence in their home countries, do not resemble the Loyalists whom the colonists feared. But in enacting § 922(g)(5)(A), Congress did not merely disarm anyone from a country with which we are at war or on which we impose sanctions. It disarmed anyone—from any corner of the globe—who arrives illegally on U.S. land.

Although that sweeps far too broadly under Bruen, § 922(g)(5)(A)’s scope may save the law from facial invalidity. As the colonial statutes indicate, it would probably be permissible for Congress today to disarm any visitor from a hostile nation. Defining what countries fall into this category is a task beyond the scope of my study and one that implicates sensitive issues of diplomacy and foreign affairs. Complicating that inquiry, Congress frequently authorizes military engagements without direct declarations of war. Nevertheless, § 922(g)(5)(A) likely has “a plainly legitimate sweep” and is certainly constitutional in at least some applications. Challengers still have ample room for as-applied challenges, which are picking up steam in related contexts like the felon-in-possession ban.

More constitutionality problematic is § 922(g)(5)(B), which bans firearm possession by nonimmigrant visaholders. As mentioned above, courts have found that tourist and student visaholders fall under the scope of “the people,” in other constitutional contexts, and the Supreme Court has reminded us that the Second Amendment is not “a second-class right, subject to an entirely different body of rules than the other Bill of Rights guarantees.” Moreover, by virtue of their legal status, these visitors presumably do not “pose a threat to the physical safety” of others. Whatever weight that argument holds in the context of unlawful immigrants goes out the window when applied to lawful visaholders. Second Amendment concerns aside, it is even questionable whether § 922(g)(5)(B) satisfies rational-basis review. Denying firearm possession to nonimmigrant visaholders but not lawful visitors without visas seems nonsensical. A Canadian who shoots a firearm at a gun range in New York would face no legal liability if on vacation but would be a felon if he were a student at Columbia University.

I recognize the concerns that would abound if undocumented immigrants could possess and carry firearms. But practical difficulties in administering a constitutional right are no excuse for violating that right. So, that begs the question, how could Congress disarm dangerous immigrants—of any legal status—while respecting the Second Amendment? The government has a variety of options at its disposal. First, and most obviously, it may deport those residing in the country illegally. And, as confirmed by Rahimi, it may temporarily disarm immigrants who are found to pose a credible threat to the safety of others. Courts frequently assess a defendant’s dangerousness in other contexts, such as pre-trial release and sentencing. And jurisdictions such as New York City that condition firearm ownership on a permit in which applicants must satisfy discretionary criteria, such as possessing good moral character, claim vociferously in Second Amendment litigation that their schemes are administrable.

In sum, my argument is not revolutionary: noncitizens have constitutional rights, among which the Second Amendment is included. Gone are the days in which courts could conclude that undocumented immigrants are protected by the Second Amendment only to deny that right to every single one of them under the banner of intermediate scrutiny. Under Bruen (and now Rahimi), the government has much heavier lifting to accomplish before it can disarm an individual, let alone a group of millions.