Do Illegal Immigrants Have Second Amendment Rights?

Does the right of the people to keep and bear arms include people who aren’t in this country legally? Jorge Miranda hopes so. 

Miranda, who was previously deported from the United States, is now facing second-degree murder charges as well as charges for illegal gun possession after allegedly selling fentanyl pills to a man who subsequently died of a drug overdose.

Miranda’s defense attorneys, though, are arguing that the gun charges should be dismissed because they violate his Second Amendment rights. 

The defense team wrote, “Prohibiting undocumented immigrants from possessing or owning a firearm violates the Second Amendment to the United States Constitution.” The Second Amendment states, “A well-regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.”

The defense attorneys argued that Nevada state law, specifically NRS 202.360.2(E), which prohibits an individual who is illegally or unlawfully in the United States from possessing a firearm, is unconstitutional.

The law “limits the right to bear arms by prohibiting undocumented immigrants from possessing a firearm to defend themselves, their families, their homes and eliminates their ability to hunt or use firearms recreationally,” according to the defense team’s motion.

Miranda may not have the right to keep and bear arms, but he is entitled to the best possible defense, so I don’t fault the public defenders for arguing that he and other illegal immigrants can legally own and carry firearms for self-defense, hunting, or other lawful purposes. 

The Clark County D.A.’s office, though, has a pretty reasonable rebuttal to those claims. 

“Although the Second Amendment’s jurisprudence has evolved over time, there has never been any law or decision by any court concluding that persons illegally in the United States can enjoy the rights and protections of the Second Amendment,” Deputy District Attorney James Puccinelli wrote. “Defendant Miranda is neither law-abiding nor a citizen, which are the necessary requirements for Second Amendment protection. He has already been forcefully deported from this country.”

Puccinelli included documents from the Executive Office for Immigration Review. The Board affirmed Miranda’s removal from the United States as ordered in 2002, according to a 2004 decision.

The Supreme Court has indicated that the “the people” who possess the right to keep and bear arms encompasses the “political community”, but it’s never specifically addressed whether undocumented immigrants are part of “the people”, even though lower courts have split on the issue. In United States v. Portillo-Munoz, the Fifth Circuit held that illegal immigrants do not have any Second Amendment rights, but the Seventh Circuit ruled in United States v. Meza-Rodriguez that “the people” is broad enough to include non-citizens who are in this country legally and illegally. 

So, the argument by Miranda’s attorneys isn’t quite as loony as might seem at first glance. Still, given what the Supreme Court has about “the people” in Heller, Bruen, and Rahimi there’s strong evidence that the Court believes illegal immigrants are not entitled to the Second Amendment’s protections. 

“In Heller, this Court held that the right applied to ordinary citizens within the home,” wrote Chief Justice John Roberts in Rahimi. SCOTUS didn’t say “ordinary people”, “ordinary residents”, “law-abiding adults,” or use any other qualifier that would suggest non-citizens possess Second Amendment rights. Nor is there any suggestion that individuals who are in this country are part of the “political community” who are fully vested with the right to keep and bear arms. 

To the contrary; illegal immigrants are ineligible to vote in federal elections, serve on juries, or hold office. They’re outside the political community, and therefore aren’t a part of we “the people” whose right to keep and bear arms is guaranteed by the Constitution. 

That’s my reading, anyway. We’ll see what Clark County District Court Judge Michelle Leavitt has to say. Miranda had a hearing on his request to dismiss the gun charges last Wednesday, and now it’s up to Leavitt to decide if his public defenders have made a compelling case. We’ll be keeping an eye out for her decision, and will report back once it’s in hand.