9th Circuit: Law banning immigrants in US illegally from possessing firearms is constitutional

A federal law making it a crime for people who have entered the U.S. illegally to possess firearms is consistent with the Second Amendment, the 9th U.S. Circuit Court of Appeals has ruled in a case touching on two of the country's most hotly debated political issues.

In a unanimous opinion published Tuesday, a three-judge panel of the San Francisco-based federal appeals court declined to decide whether the amendment's protections actually extend to foreigners in the country illegally, but said that even if they did, the criminal statute in question did not violate the Constitution.

"[T]he government's interests in controlling crime and ensuring public safety are promoted by keeping firearms out of the hands of unlawful aliens," Senior Judge N. Randy Smith wrote for the court, adding that the federal government was justified in its concern that individuals who violate immigration laws may pose a greater threat to law enforcement.

Victor Manuel Torres, a Mexican man who had been living in the United States without legal permission since 2005, argued before the court that the federal law under which he had been convicted impermissibly created a blanket ban on a class' right to possess arms.

The 9th Circuit "should read 'the people' of the Second Amendment consistently with 'the people' of the Fourth Amendment," Torres' attorney, Adam G. Gasner, wrote in a 2016 brief before the court. He noted that federal case law establishes certain constitutional protections to people who cross the border illegally, such as the ban on unreasonable searches and seizures codified in the Fourth Amendment.

Smith, in his opinion -- which was joined by Chief Judge Sidney R. Thomas and visiting U.S. District Judge Sharon L. Gleason -- ruminated on whether U.S. Supreme Court precedent and the text of the Second Amendment included those who entered the country illegally when referring to "people."

Five other federal appeals courts across the country have weighed in on the statute challenged by Torres in recent years.

All have uniformly ruled that 18 U.S.C. Section 922(g)(5)(A) suffers no constitutional defect, but have arrived at that conclusion through different methods of interpretation.

The 9th Circuit opted Tuesday not to take a stand on that question, assuming only for the purposes of the appeal that immigrants who entered the U.S. without permission enjoyed some Second Amendment rights.

"[W]e believe the state of the law precludes us from reaching a definite answer on whether unlawful aliens are included in the scope of the Second Amendment right," Smith wrote after laying out the state of various circuits' interpretations. United States v. Torres, 2019 DJDAR 156 (9th Cir. Jan. 8, 2019).

Gasner, a San Francisco sole practitioner, said Tuesday he was disappointed in the ruling and was considering whether to proceed with a request for en banc or Supreme Court review.

"The Bill of Rights applies in all other regards to undocumented people, and it should," Gasner said in a telephone interview, noting that such individuals have established rights under the First, Fourth, Eighth and 14th Amendments. "So I think the argument that, based on the immigration status, Second Amendment rights are different, is shortsighted".

Torres was originally charged with possession of an unregistered firearm in a vehicle in Santa Clara County Superior Court, but federal law enforcement officials removed the case to pursue claims under Section 922(g)(5)(A), Gasner said. After his federal conviction, California prosecutors pursued charges and secured a conviction against the defendant.

"This challenge didn't seek to allow undocumented [immigrants] to have firearms," Gasner said, characterizing the federal prosecution as duplicative. "There are a myriad of laws that prevent them from having them."

But Torres' argument wasn't just one of principle.

"It's more than symbolic," Gasner said. "This law is being used to charge undocumented [immigrants] to subject them to very stiff federal sentencing structures the rest of the documented population doesn't have to face."

His client was sentenced to 27 months in prison, according to court documents.

The U.S. attorney's office for the Northern District of California did not respond to a request for comment by press time.