Van Pate: A court says undocumented immigrants are not part of ‘the people’ — is it right?

Harris Van Pate

Submitted photo

When we think of Second Amendment rights, we traditionally think of law-abiding, responsible American citizens keeping guns for self-defense. However, a series of recent lawsuits have raised the question: Do undocumented immigrants have the right to bear arms? While an Illinois court said yes in March, a court in Louisiana disagreed on Aug. 27.

In the August ruling, judges in the 5th Circuit applied a recent Second Amendment precedent, interpreting the term “the people” in the Second Amendment to exclude undocumented immigrants. Meanwhile, in its earlier ruling, the Illinois court pointed to a longstanding tradition of providing limited constitutional rights to non-citizens. 

Courts can’t seem to agree on this issue. That’s why the Supreme Court should clarify the definition of “the people” in the Second Amendment to align with the rest of the Bill of Rights, providing a limited right to bear arms to undocumented immigrants. These immigrants are less likely to report crime and more likely to be victims of it, especially human trafficking. So, since the right to bear arms is justified, in part, by the need for self-defense, it is horrifying and absurd that undocumented immigrants have no legal way to use a gun to defend themselves.

Many people assume that these immigrants don’t have any constitutional rights because they aren’t citizens, but that is incorrect. Ever since the 1886 case Yick Wo v. Hopkins, the Supreme Court has recognized that non-citizens have some limited constitutional rights, such as protection from racial discrimination. The court there said that a San Francisco law being used to racially discriminate against Chinese non-citizens violated their 14th Amendment right to equal protection of the law.

Undocumented immigrants don’t have every right of American citizens, such as the right to vote. Still, many of the protections in the Bill of Rights have been granted to them before. In previous cases, the Supreme Court has granted First, Fourth and 14th Amendment rights to non-citizens, albeit in limited capacities. Further, Justice Antonin Scalia in Reno v. Flores wrote that the “Fifth Amendment entitles aliens to due process of law in deportation proceedings.”

Unlike these other constitutional rights, we have a national ban on illegal immigrants possessing guns. Before 2022, this limitation was largely justified under public interest outweighing individual gun rights, but then the Supreme Court decided NYSRPA v. Bruen. There, the court ruled that when the Second Amendment’s text covers individual conduct, the government must prove their restriction is consistent with the national historical tradition of firearm regulations.

Hence the controversy before us: Before the Chinese Exclusion Act of 1882, there were no laws regulating immigration at all, let alone what undocumented immigrants could do, and so a federal law banning all such immigrants from having guns does not have historical backing. The disagreement now in the courts is whether undocumented immigrants are part of “the people” protected in the Second Amendment because if they are, then they would have a right to bear arms.

Comparing the Second Amendment’s language to other parts of the Bill of Rights provides guidance in who is part of “the people.” The First Amendment protects the rights of “the people,” and so does the Fourth Amendment. The Supreme Court has found non-citizens to have limited versions of these rights, such as in the 1945 case Bridges v. Wixon, where an Australian man was not allowed to be deported solely because of his membership in the Communist Party.

The court ruled that non-citizens have some right to freedom of speech.

In US v. Verdugo-Urquidez, the Supreme Court ruled that certain, though not all, nonresident aliens have a Fourth Amendment right to privacy. If the definition of “the people” can be extended to non-citizens for the rest of the Bill of Rights, then the same can be said for the Second Amendment. Allowing all immigrants unrestricted access to firearms for aliens would be incredibly unwise, but blanket banning access to a much-needed avenue for self-defense to a group frequently victimized by human trafficking and other violent crimes is also dangerous.

The Supreme Court should act to clarify this issue soon, as many people’s ability to defend themselves is at risk. Aliens’ right to self-defense likely should not be as extensive as American citizens, but it should exist. Until the Supreme Court correctly applies Bruen’s requirements to undocumented l immigrant cases, their right to self-defense will lack nationwide legal protection.

Editor’s note: Harris Van Pate is a policy analyst specializing in legal and public policy at the Maine Policy Institute. Do you have an opinion on this issue? We’d like to hear from you. Reader reactions, pro or con, are welcomed at AzOpinions@iniusa.org.