On May 23, 2022, the Eleventh Circuit Court of Appeals decided the United States v. Jimenez-Shilon[i], in which the court considered whether the Second Amendment’s right to bear arms applied to illegal aliens.  The relevant facts of Jimenez-Shilon are as follows:

Ignacio Jimenez-Shilon, an illegal alien from Mexico, lived in the United States for more than 20 years before his recent deportation. One afternoon in 2019, he drunkenly brandished a gun outside a taco stand in Tampa, Florida. He was arrested, and a grand jury charged him with one count of possession of a firearm by an illegal alien, in violation of 18 U.S.C. § 922(g)(5)(A). Although Jimenez never disputed his guilt, he moved to dismiss the indictment on the ground that a conviction would impermissibly punish him for engaging in conduct protected by the Second Amendment. Jimenez also sought an evidentiary hearing to establish his connections with the United States. The district court denied Jimenez’s motion to dismiss and later denied his motion for reconsideration.[ii]

Jimenez-Shilon was then convicted at a bench trial, and he filed an appeal of his motion to dismiss with the Eleventh Circuit Court of Appeals.

On appeal, he argued that Section 922(g)(5)(A), which prohibits the possession of firearms by illegal aliens, violated the Second Amendment.

The court of appeals first noted that 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.” U.S. Const. amend. II.[iii]

Jimenez-Shilon argued that, since he lived in the United States for twenty years, even as an illegal alien, he was still among “the people” protected by the Second Amendment, therefore he could not be punished for exercising his constitutional right to possess a firearm.

The court of appeals then set out to determine whom the Framers of the Constitution meant by “the people” in the Second Amendment.   The court examined various texts in the Constitution and noted that, when the Framers of the Constitution intended to limit certain rights to “citizens,” they did so expressly, providing the example of the right to hold office in the House of Representatives is limited to “citizens.”   The court also noted that when the Framers intended to extend rights to “all persons” they also did so expressly.  As such, the court of appeals stated

It appears, then, at least as a general matter, that the phrase “the people” sits somewhere in between—it has “broader content than ‘citizens,’ and . . . narrower content than ‘persons.'” United States v. Huitron-Guizar, 678 F.3d 1164, 1168 (10th Cir. 2012)[iv]

The court then explained that they do not have to decide if Jimenez-Shilon is one of the “the people” protected by the Second Amendment, because there are instances where certain members of “the people” are still prohibited from possession of firearms, such as convicted felons and the mentally ill.

The court of appeals then examined the historical law of England for context on the rights of non-citizens.  The court noted that non-citizens were not afforded the same rights of land ownership and gun ownership, as the right to possess a weapon carried with the need for allegiance to England.

It also examined the early history of the colonies in America.  The court noted that Native Americans and aliens that would not “affirm their allegiance to the British Crown” were not allowed to own firearms.  Then later, “people who did not support the Revolution were ordered to turn over their guns.”[v]  The court stated

In both cases, an individual’s “‘undivided allegiance to the sovereign'”—his “membership in the political community”—was regarded as “a precondition to the right to keep and bear arms.” United States v. Perez, 6 F.4th 448, 462 (2d Cir. 2021) (Menashi, J., concurring) (quoting Churchill, supra, at 157).[vi]

The court also discussed how this is consistent with the purpose of the historical right to bear arms, particularly the ability to defend one’s liberty.  The court stated

Consistent with the English and colonial accounts, various Framing-era sources “refer to arms-bearing as a citizen’s right” that was closely associated with national fealty and membership in the body politic. Note, The Meaning(s) of “The People” in the Constitution, 126 Harv. L. Rev. 1078, 1093 (2013) (emphasis added). To take one example, the Federalist Papers explained that one of the bulwarks of personal liberty was the prospect of “citizens with arms in their hands.” The Federalist No. 46, at 296 (James Madison) (Clinton Rossiter ed., 1961). “If the representatives of the people” were to “betray their constituents,” Hamilton proclaimed, then it would be the natural right of the “citizens” to “rush tumultuously to arms.” The Federalist No. 28, at 176 (Alexander Hamilton); see also, e.g., 3 Joseph Story, Commentaries on the Constitution of the United States § 1890, at 746 (1833) (“The right of the citizens to keep and bear arms has justly been considered, as the palladium of the liberties of a republic; since it offers a strong moral check against the usurpation and arbitrary power of rulers” and “enable[s] the people to resist and triumph over them.”).[vii]

The court of appeals then explained that the Second Amendment codifies the above principles, providing us the ability to field a “citizen militia” and the ability of self-defense if the government becomes unable or unwilling to do so.  Specifically, the court stated

The Second Amendment seems to have codified this principle. See Heller, 554 U.S. at 592-93, 599. “It was understood across the political spectrum that the right” to keep and bear arms “helped to secure the ideal of a citizen militia, which might be necessary to oppose an oppressive military force if the constitutional order broke down.” Id. at 599. At the same time, it helped to secure the citizen’s right to self-defense when his government was unable (or unwilling) to protect him from private lawlessness. See id. at 594-95; Blackstone, supra, at *144.[viii]

The court of appeals also noted that in both England and colonial America, the right to bear arms did not extend to people that were non-citizens, and the right to bear arms was subject to some government regulation.  The court stated

[J]ust as it was in both England and colonial America, this right did not extend in the same fashion to persons outside the national polity. For them, the ability to keep and bear arms remained subject to governmental regulation. That is, Congress could lawfully restrict the privilege for those who— like illegal aliens today—did not owe or swear allegiance to the United States. See Churchill, supra, at 159.[ix]

The court of appeals also examined other historical evidence that supported the idea that Congress could restrict illegal aliens from possessing firearms.  First, the court observed that many early state constitutions in both northern and southern states specifically limited the right to bear arms to “citizens.”  Second, the court considered a “fundamental tenant of eighteenth-century international law,” specifically that an alien “could not settle by full right” but rather had to ask the “chief of the place.”[x]  The court noted that in England, often an alien had to “announce one’s presence and take an oath.”[xi]  As such, an alien could not illegally enter a country and “expect to receive all the rights and protections” of citizens.[xii]

Therefore, the Eleventh Circuit then held

None of this, of course, is to suggest that illegal aliens in the United States have no constitutional rights whatsoever. See Verdugo-Urquidez, 494 U.S. at 270-71. But consistent with the Second Amendment’s text and history, [illegal aliens] do not enjoy the right to keep and bear arms. Accordingly, we hold that 18 U.S.C. § 922(g)(5)(A) passes constitutional muster. The law’s ban on firearm possession by illegal aliens does not “infringe[]” the right that the Second Amendment embodies. See Heller, 554 U.S. at 592[xiii]



[i] No. 20-13139 (11th Cir. Decided May 23, 2022)

[ii] Id. at 1-2

[iii] Id. at 2

[iv] Id. at 6

[v] Id. at 12

[vi] Id.

[vii] Id. at 13-14

[viii] Id. at 14-15

[ix] Id. at 15 (emphasis added)

[x] Id. at 16

[xi] Id.

[xii] Id. at 17

[xiii] Id. (emphasis added)

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