Joel M. Flaum
Diane P. Wood
Saying the right to bear arms “is no second-class entitlement,” a federal appeals court held Thursday that some undocumented immigrants are protected by the Second Amendment.
The 7th U.S. Circuit Court of Appeals rejected the notion that foreign nationals who are in the United States illegally have no right under any circumstance to possess and carry firearms.
In certain instances, the court’s majority wrote, non-citizens — even those who do not have the proper authorization to be in this country — are covered by the Bill of Rights.
Foreign nationals are entitled to constitutional protections “when they have come within the territory of the United States and developed substantial connections with this country,” Chief Judge Diane P. Wood wrote for the majority, quoting United States v. Verdugo-Urquidez, 494 U.S. 259 (1990).
Judge Frank H. Easterbrook joined the opinion.
The majority opinion puts the Chicago-based 7th Circuit at odds with three other federal appeals courts.
Those courts — the 4th Circuit in Richmond, Va.; the 5th Circuit in New Orleans; and the 8th Circuit in St. Louis — have ruled that undocumented immigrants do not have Second Amendment rights.
In its opinion, the 7th Circuit majority concluded that Mariano A. Meza-Rodriguez is among the foreign nationals protected by the Second Amendment.
Meza lived in the United States from the time he was a child until he was deported to his native Mexico more than 20 years later.
While Meza’s behavior “left much to be desired” — he had several brushes with the law — he had substantial connections to this country, the majority wrote.
That finding, however, did not prompt the majority to rule that Meza’s Second Amendment rights were violated when he was indicted under a federal law barring undocumented immigrants from possessing firearms or ammunition.
The right to bear arms “is not unlimited,” the majority wrote.
Congress, it wrote, may restrict gun ownership when it comes to certain groups of people.
In addition to undocumented immigrants, those groups may include felons, fugitives and others “who have already disrespected the law,” the majority wrote.
In a separate opinion, Judge Joel M. Flaum concurred with the majority’s holding that Meza’s rights were not violated.
But he expressed doubt that undocumented immigrants have the right to bear arms.
And he contended his fellow judges didn’t need to address that issue to rule on Meza’s appeal.
If it were up to him, Flaum wrote, citing United States v. Huitron-Guizar, 678 F.3d 1164 (10th Cir. 2012), he would follow the lead of the Denver-based 10th Circuit “and reserve resolution of this challenging constitutional question for a case that compels addressing it.”
Joseph A. Bugni of Federal Defender Services of Wisconsin Inc. in Madison, Wis., argued the case before the 7th Circuit on behalf of Meza.
“We’re very happy that they acknowledged that undocumented immigrants have Second Amendment rights and that the Bill of Rights extends to them,” Bugni said.
He said he will ask the U.S. Supreme Court to review the holding that Meza’s rights weren’t violated.
Assistant U.S. Attorney Gail J. Hoffman of Milwaukee argued the case for the government.
Spokesman Dean Puschnig of the U.S. attorney’s office for the Eastern District of Wisconsin declined to comment.
In 2013, Meza was arrested following a bar fight in Milwaukee. He was carrying a .22-caliber cartridge.
After he was indicted, Meza moved to dismiss the case. He argued that the restriction on gun ownership violated his constitutional rights.
U.S. Magistrate Judge William E. Callahan Jr. concluded that undocumented immigrants are not protected by the Second Amendment and recommended the motion be denied.
U.S. District Judge Rudolph T. Randa adopted the recommendation.
Meza then pleaded guilty on the condition he be allowed to appeal Randa’s ruling. Randa sentenced Meza to time served.
Meza later was deported, but continued to pursue his appeal because his conviction bars him from ever returning to this country.
In its opinion, the 7th Circuit majority noted that the Supreme Court confirmed in District of Columbia v. Heller, 554 U.S. 570 (2008), that there is an individual right to bear arms. In that case, the high court struck down the handgun ban in Washington, D.C. — which ultimately led to a similar Chicago ordinance being overturned.
The majority acknowledged the Supreme Court did not address whether undocumented immigrants are among those who have this individual right.
However, the high court has never overturned its holding in such cases as Verdugo-Urquidez and Plyler v. Doe, 457 U.S. 202 (1982), that even undocumented immigrants “enjoy certain constitutional rights,” the majority wrote.
“In the post-Heller world, where it is now clear that the Second Amendment right to bear arms is no second-class entitlement,” Wood wrote, “we see no principled way to carve out the Second Amendment and say that the unauthorized (or maybe all non-citizens) are excluded.”
The case is United States v. Mariano A. Meza-Rodriguez, No. 14-3271.