Federal court examines noncitizens' Second Amendment rights

(CN) — A federal appeals court panel on Monday upheld the firearms conviction of a Guatemala native who had been illegally living in the U.S. for a decade, even though a majority of the court said the rights of some noncitizens to bear arms could still be protected by the Second Amendment.

Milder Escobar-Temal was convicted in the U.S. District Court for the Middle District of Tennessee of unlawful possession of a firearm under a federal law that prohibits a person unlawfully present in the U.S. from possessing firearms.

Escobar-Temal has been living in Nashville since 2012 and working as a flooring contractor. The only mark on his record was a traffic charge that was later dismissed. The weapons charge stemmed from a police search in his home where officers found three firearms.

Escobar-Temal appealed his weapons conviction arguing that the federal statute is unconstitutional under the Second Amendment.

A three-judge panel of the Sixth Circuit affirmed Escobar-Temal’s conviction in a decision written by Senior U.S. Circuit Judge Jane Branstetter Stranch, a Barack Obama appointee, and joined by U.S. Circuit Judges Stephanie Dawkins Davis, a Joe Biden appointee, and Amul R. Thapar, a Donald Trump appointee. Thapar filed a separate opinion concurring in the judgment but disagreed with the majority’s conclusion that a person living in the U.S. illegally could be entitled to carry firearms.

The Sixth Circuit panel disagreed with the defendant’s argument that the federal weapons statute is unconstitutional on its face under the Second Amendment. It held that, even though Escobar-Temal may be inherently non-violent, it is reasonable for the government to disarm him, because he does not have the relationship with the government that is necessary for Second Amendment protection.

“He may not be dangerous. But his lack of relationship with the government as an unlawfully present individual renders it reasonable for the government to disarm him in the same way that, in 1777, it could disarm a peaceable Quaker or loyalist.” Stranch wrote.

The government had argued in this case that individuals not lawfully present in the U.S. are not part of “the people” and thus do not have Second Amendment rights. But the majority of the federal appellate court, quoting a 1990 U.S. Supreme Court decision, also said immigrants who have developed “substantial connections” with this country do enjoy constitutional protections.

“Our own precedent suggests that those who have developed sufficient connections to this country include at least some unlawfully present individuals,” Stranch wrote. “We have, for instance, enforced the Fourth Amendment rights of individuals unlawfully present in the United States.”

She went on to say that other federal circuit courts have “rejected arguments that ‘the people’ categorically excludes unlawfully present individuals and instead, have assumed, without deciding, that the Second Amendment’s protections extend to such individuals.”

The U.S. Supreme Court has referred to Second Amendment rights as applying to “citizens,” she wrote.

“But at no point in these opinions did the Supreme Court or this circuit, even in dicta, limit ‘the people’ to citizens," she continued. “The fact that the Second Amendment certainly encompasses all U.S. citizens does not mean that it excludes those who are not.”

Writing separately, Thapar dissented from the majority’s conclusion on that point.

“’We, the People of the United States,’ means something specific — the citizens of the United States. Constitutional text, founding-era history, and Supreme Court precedent all dispositively show this,” he wrote.

“Plain and simple, ‘the people’ refers to the American citizens who consented to the government of the United States. Since illegal aliens aren’t citizens, they can’t assert ‘the right of the people to keep and bear arms.’ And our historical traditions, constitutional text, and Supreme Court precedent confirm this," he continued.

Counsel for Escobar-Temal could not be reached for comment Monday evening.

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