Thread: Tenth Circuit Upholds Ban on Gun Possession by Illegal Aliens

Tenth Circuit Upholds Ban on Gun Possession by Illegal Aliens

volokh.com

Eugene Volokh • May 7, 2012 7:20 pm

Specifically, both statutes prohibit the possession of firearms by narrow classes of persons who, based on their past behavior, are more likely to engage in domestic violence. Based upon these characteristics, we conclude that § 922(g)8, like the statutes at issue in Marzzarella and Skoien, is subject to intermediate scrutiny.

From United States v. Huitron-Guizar (10th Cir. May 7, 2012) (thanks to Prof. Doug Berman (Sentencing Law & Policy) for the pointer):

We applied “intermediate” scrutiny in Reese, 627 F.3d at 802, which involved a Second Amendment challenge by a citizen to 18 U.S.C. § 922(g)8, the provision forbidding firearms to those subject to a domestic-protection order. If we assume that an illegal alien like Mr. Huitron-Guizar, who has been here for decades and nowhere else, is entitled to the lawful exercise of this enumerated right, and if we observe that the law here not only burdens but eliminates the right by placing, on a class of perhaps millions, a total prohibition upon possessing any type of gun for any reason, “intermediate” scrutiny would seem to apply. Id., at 800 (comparing burdens imposed by the various § 922 restrictions). Under this standard a law is sustained if the government shows that it is “substantially related” to an “important” official end. Id. at 802.

The “principal purposes” of the Gun Control Act of 1968 are to “make it possible to keep firearms out of the hands of those not legally entitled to possess them because of age, criminal background, or incompetency, and to assist law enforcement authorities in the States and their subdivisions in combating the increasing prevalence of crime.” S.Rep. No. 90-1501, at 22 (196. The alien-inpossession ban was incorporated from a predecessor statute by the 1986 Firearm Owners’ Protection Act, Pub.L. No. 99-308, 100 Stat. 449, likewise with purpose of keeping instruments of deadly force away from those deemed irresponsible or dangerous. S.Rep. No. 98-583, at 12 (1986).

Congress may have concluded that illegal aliens, already in probable present violation of the law, simply do not receive the full panoply of constitutional rights enjoyed by law-abiding citizens. Or that such individuals, largely outside the formal system of registration, employment, and identification, are harder to trace and more likely to assume a false identity. Or Congress may have concluded that those who show a willingness to defy our law are candidates for further misfeasance or at least a group that ought not be armed when authorities seek them. It is surely a generalization to suggest, as courts do, see, e.g., United States v. Orellana, 405 F.3d 360, 368 (5th Cir. 2005), that unlawfully present aliens, as a group, pose a greater threat to public safety—but general laws deal in generalities. The class of convicted felons, too, includes non-violent offenders. See McCane, 573 F.3d at 1048-49 (10th Cir. 2009) (Tymkovich, J., concurring) (suggesting that Heller’s “dictum” should not foreclose challenges to the felon-dispossession law in § 922(g)(1)). The law applies with equal force to those who entered yesterday and those who, like Mr. Huitron-Guizar, were carried across the border as a toddler. The bottom line is that crime control and public safety are indisputably “important” interests.

If the right’s “central component,” as interpreted by Heller, 554 U.S. at 599, is to secure an individual’s ability to defend his home, business, or family (which often includes children who are American citizens), why exactly should all aliens who are not lawfully resident be left to the mercies of burglars and assailants? That must be at least one reason behind the wave of challenges to § 922(g)(5). But courts must defer to Congress as it lawfully exercises its constitutional power to distinguish between citizens and non-citizens, or between lawful and unlawful aliens, and to ensure safety and order.

Here’s the Tenth Circuit’s reasoning in Reese explaining why intermediate scrutiny was the proper test:

The initial question we must address is whether intermediate scrutiny is also appropriate for the statute challenged by Reese. To be sure, § 922(g)(g)8 is arguably more restrictive than § 922(k), the statute at issue in Marzzarella, in that it prohibits the possession of all types of firearms. On the other hand, however, § 922(g)(g)8 is less restrictive than § 922(k) in that it applies only to a narrow class of persons, rather than to the public at large. And, in that regard, § 922(g)(g)8 is substantially similar to § 922(g)(9), the statute at issue in Skoien. Specifically, both statutes prohibit the possession of firearms by narrow classes of persons who, based on their past behavior, are more likely to engage in domestic violence. Based upon these characteristics, we conclude that § 922(g)(g)8, like the statutes at issue in Marzzarella and Skoien, is subject to intermediate scrutiny.

source: http://volokh.com/2012/05/07/tenth-c...llegal-aliens/

Primary elections today in 3 states: We need you standing up against the invasion

Friends of ALIPAC,

Today we have very important primary races in Indiana, North Carolina, and West Virginia. If you live in these three states we need you out voting, volunteering and rounding up other like minded Americans and getting them to the polls.

Court says illegal immigrants can't have guns

DENVER – A federal appeals court says illegal immigrants don't have a right to own firearms under the U.S. Constitution.
Emmanuel Huitron-Guizar of Wyoming pleaded guilty to being an illegal immigrant in possession of firearms after his arrest last year. He was ordered held by immigration authorities at the Natrona County Detention Center in Wyoming.

An attorney for Huitron-Guizar appealed the case, saying illegal immigrants are not excluded from possessing firearms like felons and people who are mentally ill, and should have the same rights as U.S. citizens to buy a gun for hunting and protection.

The 10th Circuit U.S. Court of Appeals in Denver ruled Monday that illegal immigrants have only limited protection under the Constitution.

Huitron-Guizar's attorney didn't return a call seeking comment.


http://www.foxnews.com/us/2012/05/08/court-says-illegal-immigrants-cant-have-guns/#ixzz1uJq1MBPo

RELATED THEY CAN'T HAVE GUNS News ..

Court affirms illegal immigrants can't have guns

STEVEN K. PAULSON, Associated Press
Updated 04:09 p.m., Tuesday, May 8, 2012

DENVER (AP) — A federal appeals court has rejected an illegal immigrant's claim that the Second Amendment guarantees him the right to bear firearms.

Emmanuel Huitron-Guizar of Gillette, Wyo., had argued that illegal aliens are guaranteed certain other rights by the U.S. Constitution, such as the right to due process. The Second Amendment provides that "the right of the people to keep and bear Arms, shall not be infringed," and Huitron-Guizar argued he was part of "the people."

But the 10th U.S. Circuit Court of Appeals in Denver ruled that Huitron-Guizar fell under the Gun Control Act of 1968, which forbids gun possession by nine classes of individuals, including illegal aliens. It conceded there is some argument about the meaning of "the people" and U.S. citizens — but found that Congress had lawfully exercised its power to distinguish between citizens and non-citizens.

"That Congress saw fit to exclude illegal aliens from carrying guns may indicate its belief, entitled to our respect, that such aliens, as a class, possess no such constitutional right," the court said.

source: Court affirms illegal immigrants can't have guns - Houston Chronicle

RELATED 2nd AMENDMENT NEWS ..

Court: illegal immigrants have no right to guns

By Keith Coffman

DENVER | Tue May 8, 2012 5:17pm EDT

(Reuters) - Illegal immigrants can be prohibited from possessing firearms under laws passed by Congress that bar certain groups from gun ownership, a federal appeals court has ruled.

A three-judge panel in Denver agreed with a prison sentence imposed by a Wyoming federal judge on a Mexican national who pleaded guilty to illegal weapons possession.

In the opinion made public on Monday, the judges said even non-citizens in the United States on visas for legitimate reasons face restrictions on firearms possession.

"Even those admitted on non-immigrant visas ... are prohibited from having firearms and ammunition unless they secure a special waiver or happen to be hunters or diplomatic or law-enforcement officials here on business," the judges wrote.

The case stemmed from the conviction of Emmanuel Huitron-Guizar, who was sentenced to 18 months in prison under a federal law that bars gun ownership by illegal aliens.

He will be turned over to immigration officials at the end of his prison term for deportation proceedings.

Born in Mexico, Huitron-Guizar, 24, came to the United States at the age of three and settled with his family in Wyoming.

Acting on a warrant, federal agents searched his home last year and found a rifle, a 12-gauge shotgun and a semiautomatic pistol and arrested him.

Huitron-Guizar ultimately pleaded guilty to the charges, but appealed his sentence, arguing that he did not fall under groups including convicted felons, the mentally ill or others who are banned from owning firearms.

But the appellate court disagreed, noting that "no right is absolute," and cited as an example a law that prohibits unauthorized people from carrying guns on commercial aircraft.

Huitron-Guizar's lawyer, Ronald Pretty, told Reuters he will appeal the ruling to the U.S. Supreme Court.

Pretty said his client has no criminal history, came to the United States as a toddler, has no real ties to Mexico and does not speak Spanish.

source: Court: illegal immigrants have no right to guns | Reuters

AP Article Added To ALIPAC HOMEPAGE NEWS with amended title ..

http://www.alipac.us/content/tenth-c...al-aliens-484/

RELATED DISCUSSION ..

Why do illegal immigrants believe they have the same rights as US citzens?

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