Illegal aliens protest in Atlanta for in-state tuition in Georgia’s public universities. Photo: Education Writers Assoc.

The Volokh Conspiracy
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GUNS

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“Dreamer” Dreams of the Right to Own a Gun

Dream on, says a federal district court.

EUGENE VOLOKH |THE VOLOKH CONSPIRACY | 6.28.2018

Kevin Ugurit Fierro-Morales is being prosecuted for possessing a short-barreled shotgun, and for possessing a firearm while “being an alien” “illegally or unlawfully in the United States” (in violation of 18 U.S.C. § 922(g)(5)(A)). But when he was arrested, he was covered by the Defered Action for Childhood Arrivals program—should that lead him to be treated as lawfully present, and as entitled to Second Amendment rights? (Set aside the separate charge short-barreled shotgun charge for now.)

No and no, a federal district court in San Diego held Tuesday. First, DACA made clear that President Obama’s action didn’t itself confer legal status: “[T]he provisions of DACA promising to defer removal and to authorize work did not confer lawful immigration status or create ambiguity as to the prohibitions of § 922(g)(5)(A).”

Second, the Second Amendment applies only to the responsible and law-abiding, whether just “responsible, law-abiding citizens” or also responsible, law-abiding permanent residents or even responsible, law-abiding temporary visitors. (The court doesn’t decide on the rights of legal aliens.) Congress may ban “possession of firearms by an alien in the United States with no legal status,” and DACA recipients don’t have legal status. (I’m oversimplifying the court’s Second Amendment discussion a bit, but that’s the gist.) Here.

“In this case, the Court concludes that Defendant’s acceptance into DACA announced by the Department of Homeland Security did not alter his immigration status or materially impact the determination whether he is “illegally or unlawfully in the United States” pursuant to § 922(g)(5)(A).

As in Abramski, there is nothing suggesting that Congress intended to exclude aliens “illegally or unlawfully in the United States” accepted in the DACA Program from the statutory provision in § 922(g)(5)(A). See Latu, 479 F.3d at 1159 (“absent a statute preventing Latu’s removability upon the filing of his application for adjustment status, we can envision no interpretation that renders Latu’s presence anything other than ‘illegal[] or unlawful[].’”).