An appeals court has upheld a federal law banning illegal aliens from possessing guns, rejecting a constitutional challenge brought by a Mexican migrant who entered the country unlawfully.
The migrant, Jose Paz Medina-Cantu, was a repeat offender: He had previously been deported and removed when he was arrested by Texas boarder patrol agents in 2022. The government charged him with two separate counts, possession of a firearm as an illegal alien and illegal reentry into the United States. He pleaded guilty and was sentenced to 15 months in prison, but preserved his right to appeal the first count on the grounds that the Second Amendment protected his right to keep and bear arms.
Medina-Cantu had earlier asked a district court to dismiss the first charge. He claimed that the gun restriction on illegal aliens violated the Second Amendment in light of US Supreme Court’s recent ruling in New York State Rifle & Pistol Association, Inc. v. Bruen, where the Court required gun laws to be “consistent with this nation’s historical tradition of firearm regulation.” The government couldn’t meet that burden, he argued, because banning illegal aliens from having guns was a tradition that did not exist when the Second Amendment was adopted.
The district court disagreed, finding sufficient historical context for the federal gun ban. Medina-Cantu then appealed.
Earlier this week, a three-judge panel of the Fifth Circuit Court of Appeals affirmed the district court’s ruling. The Supreme Court’s decision in Bruen and in a later case “did not unequivocally abrogate our precedent that the plain text of the Second Amendment does not encompass illegal aliens,” it held.
In other words, someone who is here illegally can’t claim the protection of the law of the land that excludes him from that protection.
You would think that’s just common sense.
And for common sense, we can thank Judge James Ho, who gets straight to the point in his concurrence:
The Second Amendment protects the right of “the people” to keep and bear arms. Our court has held that the term “the people” under the Second Amendment does not include illegal aliens….[A]n illegal alien does not become “part of a national community” by unlawfully entering it, any more than a thief becomes an owner of property by stealing it….And … the Court has repeatedly explained that “an alien . . . does not become one of the people to whom these things are secured by our Constitution by an attempt to enter forbidden by law.”
But of course, as Judge Ho points out, that’s “the very definition of an illegal alien—one who ‘attempts to enter’ our country in a manner ‘forbidden by law.’ So illegal aliens are not part of ‘the people’ entitled to the protections of the Second Amendment.”
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