United States v. Mariano A. Meza-Rodriguez

In the

United States Court of Appeals

For the Seventh Circuit

____________________

No. 14-3271

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

MARIANO A. MEZA-RODRIGUEZ,

Defendant-Appellant.

____________________

Appeal from the United States District Court for the

Eastern District of Wisconsin.

No. 13-CR-192 — Rudolph T. Randa, Judge.

____________________

ARGUED JUNE 5, 2015 — DECIDED AUGUST 20, 2015

____________________

Before WOOD, Chief Judge, and FLAUM and EASTERBROOK,

Circuit Judges.

WOOD, Chief Judge. When Mariano Meza-Rodriguez, a cit-

izen of Mexico, was arrested in August 2013, he was carrying

a .22 caliber cartridge. But it was what he did not have—

documentation showing that he is lawfully in the United

States—that concerns us now. His immigration status made

his possession of the cartridge a crime under 18 U.S.C.

§ 922(g)(5), which prohibits foreigners who are not entitled

2 No. 14-3271

to be in the United States (whom we will call “unauthorized

aliens”) from possessing firearms. Meza-Rodriguez moved

to dismiss the indictment that followed, arguing that

§ 922(g)(5) impermissibly infringed on his rights under the

Second Amendment to the Constitution. The district court

denied his motion on the broad ground that the Second

Amendment does not protect unauthorized aliens. That ra-

tionale swept too far, and we do not endorse it. The court’s

judgment, however, was correct for a different reason: the

Second Amendment does not preclude certain restrictions on

the right to bear arms, including the one imposed by

§ 922(g)(5).

I

Meza-Rodriguez was brought to this country by his fami-

ly when he was four or five years old. Without ever regular-

izing his status, he has remained here since that time. His

current troubles began just before midnight on August 24,

2013, when City of Milwaukee police officers responded to a

report that an armed man was at a local bar. The officers ob-

tained a surveillance video showing a man pointing an ob-

ject that resembled a firearm. Witnesses later identified that

man as Meza-Rodriguez. A few hours later, the same officers

responded to a different report of a fight at a neighboring

bar. The officers broke up the fight and recognized Meza-

Rodriguez as the man from the surveillance video. After a

foot chase, they apprehended him and patted him down.

This brief search turned up a .22 caliber cartridge in his

shorts pocket.

The government later filed an indictment alleging that

Meza-Rodriguez had violated 18 U.S.C. § 922(g)(5). That

statute states, in pertinent part, that:

No. 14-3271 3

[i]t shall be unlawful for any person …

(5) who, being an alienȭ

(A) is illegally or unlawfully in the United

States;

or

(B) except as provided in subsection (y)(2), has

been admitted to the United States under a

nonimmigrant visa …

to … possess in or affecting commerce, any

firearm or ammunition … .

Meza-Rodriguez moved to dismiss the indictment on the

ground that § 922(g)(5) imposes an unconstitutional restraint

on his Second Amendment right to bear arms. The magis-

trate judge recommended that the district court deny the

motion, relying in part on the conclusion that the Second

Amendment does not protect unauthorized aliens. The dis-

trict court concurred and denied Meza-Rodriguez’s motion.

Meza-Rodriguez then pleaded guilty pursuant to an agree-

ment with the government and preserved this issue for ap-

peal. See FED. R. CRIM. P. 11(a)(2). The district court sen-

tenced Meza-Rodriguez to time served with no supervised

release, and he was later removed to Mexico. Meza-

Rodriguez filed a timely notice of appeal from his convic-

tion.

II

Before addressing the merits, we must ensure that Meza-

Rodriguez’s removal to Mexico has not rendered his appeal

moot. We may not entertain this appeal unless it represents a

live case or controversy. See U.S. CONST. art. III, § 2. To satis-

4 No. 14-3271

fy this requirement, Meza-Rodriguez “must have suffered,

or be threatened with, an actual injury traceable to the de-

fendant and likely to be redressed by a favorable judicial de-

cision.” Spencer v. Kemna, 523 U.S. 1, 7 (1998) (quoting Lewis

v. Cont’l Bank Corp., 494 U.S. 472, 477 (1990)). A person can-

not continue to litigate “unless he can show a reasonable

probability of obtaining a tangible benefit from winning.”

Diaz v. Duckworth, 143 F.3d 345, 347 (7th Cir. 1998). A con-

victed person who already has served his sentence must

point to “some concrete and continuing injury,” i.e., “some

‘collateral consequence’ of the conviction.” Spencer, 523 U.S.

at 7.

With the benefit of supplemental briefing from the par-

ties, for which we thank them, we are satisfied that Meza-

Rodriguez meets this standard. The immigration laws de-

clare that any person who has been removed from the Unit-

ed States and who has committed an aggravated felony is

permanently inadmissible. See 8 U.S.C. § 1182(a)(9)(A)(ii).

As matters presently stand, Meza-Rodriguez meets both re-

quirements for this permanent bar: he has been removed,

and his violation of 18 U.S.C. § 922(g)(5) is an aggravated

felony. See 8 U.S.C. § 1101(a)(43)(E)(ii).

Indeed, it is possible, though not certain, that a §

922(g)(5) violation might also qualify as a crime involving

moral turpitude (CIMT). The latter term is not defined by

statute, see Marin-Rodriguez v. Holder, 710 F.3d 734, 737 (7th

Cir. 2013), but the Board of Immigration Appeals and the

courts have offered definitions. The Board has said that

moral turpitude is “conduct that is inherently base, vile, or

depraved, contrary to the accepted rules of morality and the

duties owed other persons … .” See Knapik v. Ashcroft, 384

No. 14-3271 5

F.3d 84, 89 (3d Cir. 2004) (describing the definition used by

the Board in its case and deferring to it). This court has sug-

gested that such crimes are both “deliberately committed

and ‘serious,’ either in terms of the magnitude of the loss

that it causes or the indignation that it arouses in the law-

abiding public.” Padilla v. Gonzales, 397 F.3d 1016, 1019 (7th

Cir. 2005); see also Mei v. Ashcroft, 393 F.3d 737 (7th Cir.

2004) (discussing difficulty of creating a clear definition of

the term). Persons who have been convicted of a CIMT are

also inadmissible. See 8 U.S.C. § 1182(a)(2)(A)(i)(I).

Thus, if Meza-Rodriguez loses this appeal, he cannot re-

turn to the United States. If he wins, he does not face a per-

manent bar to admission. The possibility of returning to this

country is a “tangible benefit” to Meza-Rodriguez; likewise,

his current inability to reenter is a “concrete and continuing

injury.” The appeal is therefore not moot.

The decision in Diaz might appear at first glance to be in

some tension with that conclusion, but a closer look shows

that it is not. Diaz also involved an unauthorized alien who

had completed his sentence and had been removed from the

country before we heard his appeal. See Diaz, 143 F.3d at

346. But that is the extent of the similarity between that case

and ours. Diaz did not contest the validity of his conviction.

Instead, he argued—in a habeas corpus proceeding, rather

than in a direct appeal—that he had been denied due pro-

cess when the prison revoked some of his good-time credit,

causing him to serve a longer sentence. See id. Our mootness

finding did not depend on Diaz’s deportation; we concluded

that there was no relief we could order because he already

had completed his sentence. The only consequence of the ex-

tended prison time about which he was complaining was the

6 No. 14-3271

possibility that he might be subject to enhanced punishment

for a future criminal violation. This possibility, we found,

was too speculative to avoid mootness, particularly given

the fact that Diaz already had been removed and thus was

unlikely to commit future crimes within the country. See id.

at 346–47.

The consequences of Meza-Rodriguez’s conviction are

not theoretical; his right ever to reenter the United States

hangs in the balance. Diaz recognized that “statutory disabil-

ities such as loss of the right to vote or the right to own a

gun” are sufficient to save an appeal from mootness. Id. at

346. Meza-Rodriguez faces a comparable statutory disability.

Diaz thus actually supports our conclusion that this appeal

presents a live controversy. See also United States v. Ashraf,

628 F.3d 813, 822 (6th Cir. 2011) (defendant’s removal did

not render appeal of his conviction moot because reversal

“might affect the Attorney General’s discretionary decision

to allow him back in the country”); United States v. Quezada-

Enriquez, 567 F.3d 1228, 1232 (10th Cir. 2009) (same, because

reversal of the conviction “could provide Quezada–Enriquez

with relief from the collateral consequences of conviction”);

United States v. Jurado-Lara, 287 F. App’x 704, 707 (10th Cir.

2008) (same with respect to appeal of a sentence, because a

reduction in the sentence could affect the applicability of the

aggravated felon bar); United States v. Hamdi, 432 F.3d 115,

118–21 (2d Cir. 2005) (same for appeal of a sentence, because

of the “substantial impact” a reduction in that sentence

would have on defendant’s ability to obtain discretionary

relief to be admitted into the country); Perez v. Greiner, 296

F.3d 123, 126 (2d Cir. 2002) (noting in dicta that a permanent

bar on reentry was enough to prevent a habeas petition from

becoming moot). We therefore find that this appeal is not

No. 14-3271 7

moot, and we move on to address Meza-Rodriguez’s sub-

stantive arguments.

III

Meza-Rodriguez argues that 18 U.S.C. § 922(g)(5) im-

permissibly infringes on his rights under the Second

Amendment to the Constitution. We review the constitu-

tionality of federal statutes de novo. See United States v. Sid-

well, 440 F.3d 865, 870 (7th Cir. 2006).

A

We first tackle the question whether the Second

Amendment protects unauthorized non-U.S. citizens within

our borders. The Amendment provides that “the right of the

people to keep and bear Arms, shall not be infringed.” U.S.

CONST. amend. II. The Supreme Court has confirmed that

this language confers an “individual right to possess and

carry weapons.” District of Columbia v. Heller, 554 U.S. 570,

592 (2008). But neither Heller nor any other Supreme Court

decision has addressed the issue whether unauthorized

noncitizens (or noncitizens at all) are among “the people” on

whom the Amendment bestows this individual right. A few

other courts of appeals have reached this issue, however,

and have concluded, based on language in Heller, that the

Amendment does not protect the unauthorized. See United

States v. Carpio-Leon, 701 F.3d 974, 979 (4th Cir. 2012); United

States v. Flores, 663 F.3d 1022, 1023 (8th Cir. 2011) (per curi-

am); United States v. Portillo-Munoz, 643 F.3d 437, 442 (5th

Cir. 2011); see also United States v. Huitron-Guizar, 678 F.3d

1164, 1169–70 (10th Cir. 2012) (declining to reach the issue

because § 922(g)(5) passes intermediate scrutiny in any case).

8 No. 14-3271

This issue was not, however, before the Court in Heller.

While some of Heller’s language does link Second Amend-

ment rights with the notions of “law-abiding citizens” and

“members of the political community,” see Heller, 554 U.S. at

580, 625, those passages did not reflect an attempt to define

the term “people.” We are reluctant to place more weight on

these passing references than the Court itself did. See

Huitron-Guizar, 678 F.3d at 1168 (declining to infer such a

rule both “because the question in Heller was the amend-

ment’s raison d'être—does it protect an individual or collec-

tive right?—and aliens were not part of the calculus” and

because nothing indicates that the Heller Court used the

word ‘citizen’ deliberately to settle the question); see also

Friedman v. City of Highland Park, 784 F.3d 406, 410 (7th Cir.

2015) (“Heller does not purport to define the full scope of the

Second Amendment.”).

Other language in Heller supports the opposite result:

that all people, including non-U.S. citizens, whether or not

they are authorized to be in the country, enjoy at least some

rights under the Second Amendment. (Although it is hard to

find good data about the percentage of noncitizens in the

United States before 1820, see BUREAU OF THE CENSUS, U.S.

DEP’T OF COMMERCE, HISTORICAL STATISTICS OF THE UNITED

STATES 1789-1945: A SUPPLEMENT TO THE STATISTICAL

ABSTRACT OF THE UNITED STATES (1949), available at

http://www2.census.gov/prod2/statcomp/documents/

HistoricalStatisticsoftheUnitedStates1789-1945.pdf, immigra-

tion in the late 18th century was a common phenomenon.

And such provisions as Article I, section 2, paragraph 2,

which limits membership in the House of Representatives to

persons who have been “seven Years a Citizen,” and Article

II, section 1, paragraph 4, which requires the President to be

No. 14-3271 9

“a natural born Citizen, or a Citizen of the United States, at

the time of the Adoption of this Constitution,” show that the

drafters of the Constitution used the word “citizen” when

they wanted to do so.)

Heller noted the similarities between the Second

Amendment and the First and Fourth Amendments, imply-

ing that the phrase “the people” (which occurs in all three)

has the same meaning in all three provisions. See Heller, 554

U.S. at 592 (“[I]t has always been widely understood that the

Second Amendment, like the First and Fourth Amendments,

codified a pre-existing right.”); id. at 580 (noting that “the

people” is “a term of art employed in select parts of the Con-

stitution,” including the First, Second, Fourth, Ninth, and

Tenth Amendments) (quoting United States v. Verdugo-

Urquidez, 494 U.S. 259, 265 (1990)). An interpretation of the

Second Amendment as consistent with the other amend-

ments passed as part of the Bill of Rights has the advantage

of treating identical phrasing in the same way and respect-

ing the fact that the first ten amendments were adopted as a

package. (We recognize that other uses of “the people” in the

Constitution, including in section 2 of Article I and the Sev-

enteenth Amendment, likely do not reflect this meaning. But

the word appears in a different context in those provisions,

which deal expressly with elections, not affirmative individ-

ual rights.)

The conclusion that the term “the people” in the Second

Amendment has the same meaning as it carries in other

parts of the Bill of Rights is just the first step in our analysis.

We still must decide what it means. The Supreme Court has

spoken on this issue, albeit obliquely. In Verdugo-Urquidez,

the Court determined that the Fourth Amendment did not

10 No. 14-3271

protect a noncitizen brought involuntarily to the United

States against a warrantless search of his foreign residence.

See Verdugo-Urquidez, 494 U.S. at 274–75. In rejecting Verdu-

go-Urquidez’s position, the Court stated that “‘the people’

protected by the Fourth Amendment, and by the First and

Second Amendments, and to whom rights and powers are

reserved in the Ninth and Tenth Amendments, refers to a

class of persons who are part of a national community or

who have otherwise developed sufficient connection with

this country to be considered part of that community.” Id. at

265. Of interest here, the Court also said that “aliens receive

constitutional protections when they have come within the

territory of the United States and developed substantial con-

nections with this country.” Id. at 271. It then contrasted

Verdugo-Urquidez with the unauthorized immigrants with

whom it had dealt in I.N.S. v. Lopez-Mendoza, 468 U.S. 1032

(1984). Unlike Verdugo-Urquidez, the latter “were in the

United States voluntarily and presumably had accepted

some societal obligations.” Verdugo-Urquidez, 494 U.S. at 273.

At a minimum, Verdugo-Urquidez governs the applicabil-

ity of the Fourth Amendment to noncitizens. For Fourth

Amendment rights to attach, the alien must show “substan-

tial connections” with the United States. See, e.g., United

States v. Vilches-Navarrete, 523 F.3d 1, 13 (1st Cir. 2008)

(noncitizen who was in the country involuntarily and lacked

significant previous voluntary connection with the United

States could not rely on the Fourth Amendment); Martinez-

Aguero v. Gonzalez, 459 F.3d 618, 625 (5th Cir. 2006) (whether

a noncitizen can invoke the Fourth Amendment depends on

whether she has substantial connections with the United

States, i.e., whether she is in the country of her own accord

and has accepted some societal obligations).

No. 14-3271 11

Given our earlier conclusion that the Second and Fourth

Amendments should be read consistently, we find it reason-

able to look to Verdugo-Urquidez to determine whether Meza-

Rodriguez is entitled to invoke the protections of the Second

Amendment. See Verdugo-Urquidez, 494 U.S. at 265. Doing so,

we see first that Meza-Rodriguez was in the United States

voluntarily; there is no debate on this point. He still has ex-

tensive ties with this country, having resided here from the

time he arrived over 20 years ago at the age of four or five

until his removal. He attended public schools in Milwaukee,

developed close relationships with family members and oth-

er acquaintances, and worked (though sporadically) at vari-

ous locations. This is much more than the connections our

sister circuits have found to be adequate. See, e.g., Martinez-

Aguero, 459 F.3d at 625 (noncitizen’s “regular and lawful en-

try of the United States pursuant to a valid border-crossing

card and her acquiescence in the U.S. system of immigra-

tion” was sufficient, even though she had not spent long pe-

riods of time in the country); Ibrahim v. Dep't of Homeland

Sec., 669 F.3d 983, 996–97 (9th Cir. 2012) (applying test from

Verdugo-Urquidez and finding that noncitizen pursuing Ph.D.

in the United States for four years had established significant

voluntary connection with the United States such that she

could invoke the First and Fifth Amendments).

The government counters with two arguments. First, it

contends that unauthorized noncitizens categorically have

not accepted the basic obligations of membership in U.S. so-

ciety and thus cannot be considered as part of “the people.”

Second, it argues that Meza-Rodriguez’s unsavory traits, in-

cluding his multiple brushes with the law, failure to file tax

returns, and lack of a steady job, demonstrate that he has not

sufficiently accepted the obligations of living in American

12 No. 14-3271

society. We take the latter point first. We do not dispute that

Meza-Rodriguez has fallen down on the job of performing as

a responsible member of the community. But that is not the

point. Many people, citizens and noncitizens alike, raising

Fourth Amendment claims are likely to have a criminal rec-

ord, but we see no hint in Verdugo-Urquidez that this is a rel-

evant consideration. Such a test would require a case-by-case

examination of the criminal history of every noncitizen (in-

cluding a lawful permanent resident) who seeks to rely on

her constitutional rights under the First, Second, or Fourth

Amendment. Not only would this test be difficult to imple-

ment; it would also create the potential for a noncitizen to

lose constitutional rights she previously possessed simply

because she began to behave in a criminal or immoral way.

The Second Amendment is not limited to such on-again, off-

again protection. Instead, the only question is whether the

alien has developed substantial connections as a resident in

this country; Meza-Rodriguez has.

The government’s argument might have some force if

Verdugo-Urquidez represented the Supreme Court’s only rel-

evant holding, but it does not. In Plyler v. Doe, 457 U.S. 202

(1982), which Verdugo-Urquidez left undisturbed, the Court

addressed the status of unauthorized aliens as “persons” for

constitutional purposes:

Appellants argue at the outset that undocu-

mented aliens, because of their immigration

status, are not “persons within the jurisdiction”

of the State of Texas, and that they therefore

have no right to the equal protection of Texas

law. We reject this argument. Whatever his sta-

tus under the immigration laws, an alien is

No. 14-3271 13

surely a “person” in any ordinary sense of that

term. Aliens, even aliens whose presence in

this country is unlawful, have long been rec-

ognized as “persons” guaranteed due process

of law by the Fifth and Fourteenth Amend-

ments. Shaughnessy v. Mezei, 345 U.S. 206, 212

(1953); Wong Wing v. United States, 163 U.S. 228,

238 (1896); Yick Wo v. Hopkins, 118 U.S. 356, 369

(1886). Indeed, we have clearly held that the

Fifth Amendment protects aliens whose pres-

ence in this country is unlawful from invidious

discrimination by the Federal Government.

457 U.S. at 210. Verdugo-Urquidez summarized Plyler’s hold-

ing (along with a number of others in which the Court had

recognized that aliens enjoy certain constitutional rights) as

follows: “These cases … establish only that aliens receive

constitutional protections when they have come within the

territory of the United States and developed substantial con-

nections with this country.” 494 U.S. at 271.

Meza-Rodriguez satisfies both those criteria. He has lived

continuously in the United States for nearly all his life. Dur-

ing that time, his behavior left much to be desired, but as we

have said, that does not mean that he lacks substantial con-

nections with this country. Plyler shows that even unauthor-

ized aliens enjoy certain constitutional rights, and so unau-

thorized status (reflected in the lack of documentation) can-

not support a per se exclusion from “the people” protected

by the Bill of Rights. In the post-Heller world, where it is now

clear that the Second Amendment right to bear arms is no

second-class entitlement, we see no principled way to carve

out the Second Amendment and say that the unauthorized

14 No. 14-3271

(or maybe all noncitizens) are excluded. No language in the

Amendment supports such a conclusion, nor, as we have

said, does a broader consideration of the Bill of Rights.1

B

Meza-Rodriguez’s ability to invoke the Second Amend-

ment does not resolve this case, however, because the right

to bear arms is not unlimited. See Heller, 554 U.S. at 595.

Congress may circumscribe this right in some instances

without running afoul of the Constitution, and so we must

now decide whether 18 U.S.C. § 922(g)(5) is such a permissi-

ble restriction.

The Supreme Court has steered away from prescribing a

particular level of scrutiny that courts should apply to cate-

gorical bans on the possession of firearms by specified

groups of people, though it has said that rational-basis re-

view would be too lenient. See Ezell v. City of Chicago, 651

F.3d 684, 706 (7th Cir. 2011) (citing Heller, 554 U.S. at 628

n.27). In addressing § 922(g), we have concluded that “some

form of strong showing,” akin to intermediate scrutiny, is

the right approach. See United States v. Skoien, 614 F.3d 638,

641–42 (7th Cir. 2010) (en banc) (avoiding the “‘levels of

scrutiny’ quagmire” but noting that § 922(g)(9) serves an

important governmental objective and that this provision

has a substantial relation with this objective); United States v.

Williams, 616 F.3d 685, 692 (7th Cir. 2010) (applying interme-

diate scrutiny to § 922(g)(1)); United States v. Yancey, 621 F.3d

1 Because this holding creates a split between our circuit and the

Fourth, Fifth, and Eighth Circuits, ante at 7, this opinion has been circu-

lated to all active judges pursuant to Circuit Rule 40(e). No judge voted

to hear the case en banc.

No. 14-3271 15

681, 683 (7th Cir. 2010) (requiring “a strong showing that the

challenged subsection of § 922(g) [i]s substantially related to

an important governmental objective”). Other circuits have

applied at least intermediate scrutiny. See United States v.

Chester, 628 F.3d 673, 683 (4th Cir. 2010) (applying interme-

diate scrutiny to § 922(g)(9)); United States v. Reese, 627 F.3d

792, 802 (10th Cir. 2010) (same for § 922(g)(8)). But see Tyler

v. Hillsdale Cnty. Sheriff's Dep't, 775 F.3d 308, 322–30 (6th Cir.

2014), vacated and reh’g en banc granted, No. 13-1876 (6th Cir.

Apr. 21, 2015) (applying strict scrutiny to § 922(g)(4)).

Congress’s objective in passing § 922(g) was “to keep

guns out of the hands of presumptively risky people” and to

“suppress[] armed violence.” Yancey, 621 F.3d at 683–84 (cit-

ing S. REP. NO. 90-1501, at 22 (1968)); see also Huitron-Guizar,

678 F.3d at 1169–70 (§ 922(g)’s purposes are to assist law en-

forcement in combating crime and to keep weapons away

from those deemed dangerous or irresponsible). One such

group includes aliens “who … [are] illegally or unlawfully in

the United States.” 18 U.S.C. § 922(g)(5)(A). The government

argues that the ban on the possession of firearms by this

group of people is substantially related to the statute’s gen-

eral objectives because such persons are able purposefully to

evade detection by law enforcement. We agree with this po-

sition: unauthorized noncitizens often live “largely outside

the formal system of registration, employment, and identifi-

cation, [and] are harder to trace and more likely to assume a

false identity.” Huitron-Guizar, 678 F.3d at 1170. Persons with

a strong incentive to use false identification papers will be

more difficult to keep tabs on than the general population.

(Section 922(g)(5)(B)’s prohibition on firearms possession by

most aliens who are lawfully present but who hold only

nonimmigrant visas reflects a similar concern. Holders of

16 No. 14-3271

nonimmigrant visas sometimes have no address associated

with them, making them equally difficult to track.)

The government also argues that § 922(g)(5) reflects the

likelihood that unauthorized immigrants are more likely to

commit future gun-related crimes than persons in the gen-

eral population. It offers no data to support that assertion,

however, and we have our doubts about its accuracy. The

government extrapolates from the fact that persons who are

here illegally have “show[n] a willingness to defy our law”

to the conclusion that they are likely to abuse guns. This may

go too far: the link to firearms is unclear, and unlawful pres-

ence in the country is not, without more, a crime. See Arizona

v. United States, 132 S. Ct. 2492, 2505 (2012) (“As a general

rule, it is not a crime for a removable alien to remain present

in the United States.”). While it is a misdemeanor to enter

the country improperly, see 8 U.S.C. § 1325(a), many unau-

thorized immigrants—such as Meza-Rodriguez himself—

were too young to form the requisite intent to violate this

statute when they were originally brought to the United

States. Even if this future-oriented rationale lacks support,

however, the government has an strong interest in prevent-

ing people who already have disrespected the law (includ-

ing, in addition to aliens unlawfully in the country, felons,

§ 922(g)(1), fugitives, § 922(g)(2), and those convicted of

misdemeanor crimes of domestic violence, § 922(g)(9)) from

possessing guns.

Congress’s interest in prohibiting persons who are diffi-

cult to track and who have an interest in eluding law en-

forcement is strong enough to support the conclusion that 18

U.S.C. § 922(g)(5) does not impermissibly restrict Meza-

No. 14-3271 17

Rodriguez’s Second Amendment right to bear arms. We thus

AFFIRM the district court’s denial of his motion to dismiss.

18 No. 14-3271

FLAUM, Circuit Judge, concurring in the judgment.

I concur in the judgment. Unlike the majority, I have

doubts that the Second Amendment grants undocumented

immigrants the right to bear arms, as my read of District of

Columbia v. Heller, 554 U.S. 570 (2008), does not suggest such

an expansive interpretation. But because we need not make

that determination in reaching our result in this matter, I

would follow the Tenth Circuit’s prudential approach and

reserve resolution of this challenging constitutional question

for a case that compels addressing it. See United States v.

Huitron-Guizar, 678 F.3d 1164, 1169–70 (10th Cir. 2012).

In choosing to confront the issue, the majority roots its

constitutional analysis in the common use of the phrase “the

people” by the First, Second, and Fourth Amendments, and

the Supreme Court’s suggestion in United States v. Verdugo-

Urquidez, 494 U.S. 259, 265 (1990), that all persons, regardless

of citizenship, who are part of our “national community” or

who manifest a “sufficient connection with this country” are

entitled to the rights that those amendments bestow. That

view is not without appeal. Indeed, Heller describes the Sec-

ond Amendment’s guarantee as an “ancient right,” codified

in the constitution “to prevent the elimination of the militia,”

but also “valued … for self-defense and hunting.” 554 U.S. at

599. Hence, it might be argued that all adult persons in this

country share the same basic need to defend themselves.

Further, Heller tells us that “the conception of the militia at

the time of the Second Amendment’s ratification was the

body of all citizens capable of military service.” Id. at 627.

Today, that includes certain undocumented immigrants. See

Andrew Tilghman, Military to Allow Undocumented Immi-

grants to Serve, USA TODAY (Sept. 25, 2014, 5:22 PM),

No. 14-3271 19

http://www.usatoday.com/story/news/nation/2014/09/25/pol

icy-to-allow-undocumented-immigrants-in-

military/16225135/.

Conversely, who is part of our “national community” and

whether (and how) an undocumented immigrant can estab-

lish a “sufficient connection” under Verdugo-Urquidez re-

mains unsettled. And Heller provides considerable reason to

doubt that an undocumented immigrant can enjoy Second

Amendment rights at all. The Court’s analysis professes to

“start … with a strong presumption that the Second

Amendment right is exercised individually and belongs to

all Americans.” Id. at 581 (emphasis added). It also character-

izes “the people” as referring “to all members of the political

community,” id. at 580, and describes the Second Amend-

ment as “the right of law-abiding, responsible citizens,” id. at

635 (emphasis added).

However, as the majority recognizes, Heller only ad-

dressed the question whether the right protected by the Sec-

ond Amendment is an individual or a collective one, not

which individuals possess the right. See Heller, 554 U.S. at

635 (“[S]ince this case represents this Court’s first in-depth

examination of the Second Amendment, one should not ex-

pect it to clarify the entire field … .”). In any event, the ques-

tion of who possesses the right need not be answered to

reach our outcome here, because regardless of the answer 18

U.S.C. § 922(g)(5) satisfies intermediate scrutiny and thus

passes constitutional muster.

Accordingly, I would refrain from addressing the scope

of the Second Amendment and, further, creating a conflict

with the law of the Fourth, Fifth, and Eighth Circuits.