A federal appeals court has upheld a federal law banning illegal aliens from possessing guns, ruling that the Second Amendment does not give illegal aliens the right to keep and bear arms. Yesterday, the Atlanta-based Eleventh Circuit Court of Appeals issued a 3-to-0 ruling to that effect in U.S. v. Jimenez-Shilon. The decision discussed the history and historical context of the Second Amendment, and concluded,
[Under eighteenth-century law,] 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. Nor can they do so today.
Other federal circuit and district courts have also upheld the federal law forbidding gun possession by illegal aliens, 8 U.S.C. § 922(g)(5)(A). But many of those rulings were perfunctory, lacked detailed historical analysis, and relied on very different rationales.
Judge Kevin Newsom wrote a separate concurring opinion, questioning the levels of scrutiny judges commonly employ in cases pitting constitutional rights against the government’s regulatory interests. In it, he questioned the use of strict scrutiny, intermediate scrutiny, and other levels of scrutiny both as to the Second Amendment and as to other constitutional rights, such as the First Amendment and equal protection. Allowing constitutional rights to be overcome by compelling or substantial government interests, he argues, “elevates the normative views of ‘we the judges’ over ‘We the People’ through an ill-defined balancing test.” Moreover, as applied to the First Amendment, he observes:
It’s not just that the [First Amendment strict scrutiny / intermediate scrutiny] doctrine is exhausting—although it certainly is that. It’s that the doctrine is judge-empowering and, I fear, freedom-diluting. If we, as judges, conclude—as I’ve said we should—that Second Amendment rights shouldn’t be casually balanced away by reference to manipulable means-ends balancing tests, we might need to start asking the bigger question: On what basis can we do exactly that when dealing with other, equally fundamental rights?
More of the court’s ruling and the judge’s opinion can be found here.
