Ready. Aim. Fire! the Eleventh Circuit Takes Its Shot at the Second Amendment's Application to Illegal Aliens
| Publication year | 2023 |
Ready. Aim. Fire! The Eleventh Circuit Takes its Shot at the Second Amendment's Application to Illegal Aliens
Elizabeth McDaniel
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"We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defense, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America."1
The Preamble of the United States Constitution—it is the beginning of the document that establishes our national government and provides a guideline for defining our rights and freedoms. The Preamble is the first paragraph of what is arguably the most important document in American history. It does more than simply create a group known as "the People"; it establishes the purpose of the Constitution as a whole. The Framers carefully crafted the language of the Constitution and its Amendments to capture what they believed the United States needed to become that more perfect union.
We the People see the words of the Preamble of the United States Constitution printed on money, clothing, bumper stickers, and more. We the People grew up knowing the first three words of the Constitution carried great weight. We the People see and hear this phrase frequently, but is it as clear as we have always understood it to be?
The Framers intended to establish justice for the People and to ensure domestic peace; they aimed to provide for the common defense and promote the general welfare of the People. To secure the blessings of
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liberty to the posterity means to secure the blessings of liberty to all future generations of people.2 Does this category include illegal aliens?3 The United States Court of Appeals for the Eleventh Circuit was faced with a constitutional question involving the People and the Second Amendment of the Constitution in United States v. Jimenez-Shilon.4 The issue was whether 18 U.S.C. § 922(g)(5)(A),5 (the Statute) which prohibits illegal aliens from possessing firearms, violates the Second Amendment.6 Relying on the historical context of the Constitution and prior Supreme Court caselaw concerning the Second Amendment, the Eleventh Circuit held it does not.7 While this case was one of first impression in the Eleventh Circuit, the constitutionality of the Statute has now been litigated in nine of the twelve circuit courts in the United States.8
In 2019, Ignacio Jimenez-Shilon was arrested after he publicly brandished a firearm in Tampa, Florida.9 Prior to his arrest, Mexico-born Jimenez had lived in the United States for over twenty years, but he had not established lawful citizenship.10 At thirteen years old, Jimenez was smuggled across the border into Tampa, Florida, to escape the violence occurring in his hometown in Mexico.11 While living in the United States, Jimenez worked in construction, had no violent encounters with law enforcement, and did not file a tax return.12
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After his arrest, a grand jury charged Jimenez with one count of possession of a firearm by an illegal alien under the Statute.13 Jimenez did not dispute the facts or his guilt, but he moved to dismiss the indictment for a violation of his Second Amendment right. After the United States District Court for the Middle District of Florida denied his motion to dismiss, Jimenez filed a motion for reconsideration seeking an evidentiary hearing to establish his connection with the United States. Upon having the motion for reconsideration denied, Jimenez appealed. The case was then tried at a stipulated bench trial, where Jimenez was found guilty and subsequently deported. He appealed the verdict.14
The United States Court of Appeals for the Eleventh Circuit considered de novo15 whether the Statute, which prohibits illegal aliens from possessing firearms, violated the Second Amendment right to keep and bear arms under the United States Constitution.16 With Judge Newsom authoring the opinion, the Eleventh Circuit affirmed Jimenez's conviction, holding the Statute passed constitutional muster and did not violate the Second Amendment.17
The United States Court of Appeals for the Eleventh Circuit addressed the constitutionality of the Statute by examining the Statute itself, reviewing the historical and textual background of the Constitution, and consulting a Supreme Court decision about the Second Amendment.18 An additional consideration not addressed in depth by the court, but still carrying great weight, is the approach taken by other circuit courts regarding the same issue.
A. The Statute—18 U.S.C. § 922(g)(5)(A)
Before its codification in the United States Code, the language of the Statute was introduced by the Gun Control Act of 1968.19 The structure of the Gun Control Act shows Congress intended to "keep firearms away from the persons Congress classified as potentially irresponsible and
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dangerous."20 Congress placed a limit on the Second Amendment as it applies to illegal aliens as well as to felons and those with mental illness.21 Aside from dangerousness, Congress restricted these categories of people on the basis they were not law-abiding citizens using firearms for lawful purposes.22
The stated purpose of the Act was to assist state and local governments in reducing crime and increasing the effectiveness and fairness of the criminal justice system.23 The applicable language states, "It shall be unlawful for any person . . . who, being an alien . . . is illegally or unlawfully in the United States . . . to . . . possess . . . any firearm or ammunition[.]"24 This particular section of the Statute has been questioned in courts around the United States but has always been upheld as constitutional.
B. The Constitution of the United States
A historical and textual analysis of the Constitution delivers two key concepts that are contemplated by the court: (1) the term "the People" and (2) the scope of the Second Amendment.25
1. Who are "the People"?26
Historically, many founding-era dictionaries defined "people" as "[a] nation; those who compose a community."27 A later dictionary defined "people" as "[t]he body of persons who compose a community, town, city, or nation."28 These definitions are reflected in today's language as well: "the entire body of persons who constitute a community, tribe, nation, or other group by virtue of a common culture, history, religion, or the like[.]"29
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The Supreme Court of the United States established its baseline for determining the category of the People in United States v. Verdugo-Urquidez.30 The Court considered whether an illegal alien was part of the people and therefore protected by the Fourth Amendment.31 The Court brought together the First,32 Second, Fourth, Ninth,33 and Tenth34 Amendments as referring to the same category of people because generally, a word or phrase is meant to carry the same meaning each time it is used in a document.35
The Supreme Court reasoned the People, as used in the Constitution, is a term of art.36 It further identified the following two classes as being part of the People: (1) those who are "part of a national community" and (2) those who have "developed sufficient connection with this country to be considered part of that community."37 Illegal aliens do not automatically fall into the first category, but some illegal aliens might fall into the second category if they develop sufficient connections with the United States.38 Despite this concept, the Court does not make it clear how an illegal alien would develop such sufficient connections. Because the Supreme Court held Verdugo did not have a "voluntary connection"39 to the United States, it rejected his argument that he fit into the second definition.40
When the Framers extended constitutional provisions to all persons in the United States, they did so expressly.41 The Supreme Court further affirmed there is no historical or textual reason to believe the Framers meant for the People to differ from one provision of the Bill of Rights to another.42
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Later, the United States Court of Appeals for the Tenth Circuit held the class of the People seems to be broader than a citizen yet more limited than all persons.43 Without determining the classification of an individual as one of the People, the court moved their focus to the scope of the Second Amendment.44
2. The Scope of the Second Amendment
The Second Amendment of the Constitution 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."45 The Supreme Court of the United States has affirmed the Second Amendment is not limited to the carrying of weapons within an organized militia and is not limited to firearms existing at the time the amendment was written.46
Notably, the Second Amendment is not unlimited.47 Preceding the Founding of the United States, the laws of old England disqualified some groups from the right to keep and bear arms; illegal aliens were one such group.48 It was well understood in the late 1800s that several groups including illegal aliens only enjoyed the advantages of certain laws.49 For example, several colonies had decreed a complete ban on ownership of firearms by Native Americans and slaves based on their representation as a danger to others during the Founding and the Civil War, respectively.50 In the eighteenth century, England only allowed the "landed gentry" to own firearms.51
State constitutions were also considered in the interpretation of the Second Amendment, and multiple states limited the right to keep and bear arms to citizens.52 Four states53 wrote their constitutions before the Second Amendment; two54 of those states...
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