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Article Title

Who Are "The People?": The Seventh Circuit Extends Second Amendment Rights to Undocumented Immigrants

Authors

Patrick W. Etchingham

Abstract

Undocumented immigrants within the United States are human. Whether they exist as "people" protected by the Bill of Rights is another question entirely. The Second Amendment states "the right of the people to keep and bear arms, shall not be infringed." The phrase "the people" appears in the First, Second, Fourth, Ninth, and Tenth Amendments to the United States Constitution, among other places in the United States' most sacred documents. However, courts have rarely defined "the people," except in the Fourth and—recently—Second Amendment contexts. In United States v. Verdugo–Urquidez, the Supreme Court held that the Fourth Amendment protects "people," such as undocumented immigrants within the United States, so long as they can show substantial connections with the United States.

In August 2015, the Seventh Circuit created a circuit split by applying the substantial connections test from the Fourth Amendment to the Second Amendment. In United States v. Verdugo–Urquidez, a grand jury indicted Mariano Meza–Rodriguez under a federal firearms law for being an undocumented immigrant in possession of a firearm. He challenged the indictment, arguing that the district court's denial of his motion to dismiss violated his Second Amendment right to bear arms. The Seventh Circuit applied the Fourth Amendment Verdugo–Urquidez substantial connections test to the Second Amendment context. So long as undocumented immigrants in the United States have developed substantial connections with the United States, the Second Amendment confers to them a right to bear arms. Applying the test, the Seventh Circuit held that Mr. Meza–Rodriguez had a Second Amendment right to bear arms permissibly restricted by a federal firearms law.

In contravention of the Supreme Court's reading of "the people" in the Fourth Amendment context in Verdugo–Urquidez, three federal circuit courts have not extended that reading of "the people" to the Second Amendment. Unlike the other circuits, the Seventh Circuit followed a consistent reading of "the people" and aligned with Supreme Court language in other contexts to provide a superior interpretation of "the people."

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Recommended Citation

Patrick W. Etchingham, Who Are "The People?": The Seventh Circuit Extends Second Amendment Rights to Undocumented Immigrants, 11 Seventh Circuit Rev. 92 (2015).
Available at: https://scholarship.kentlaw.iit.edu/seventhcircuitreview/vol11/iss1/5