PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

v.  No. 11-5063

NICOLAS CARPIO-LEON,

Defendant-Appellant. 

Appeal from the United States District Court

for the District of South Carolina, at Orangeburg.

Margaret B. Seymour, District Judge.

(5:11-cr-00372-MBS-1)

Argued: September 21, 2012

Decided: December 14, 2012

Before TRAXLER, Chief Judge, and NIEMEYER and

MOTZ, Circuit Judges.

Affirmed by published opinion. Judge Niemeyer wrote the

opinion, in which Chief Judge Traxler and Judge Motz joined.

COUNSEL

ARGUED: Douglas Neal Truslow, Columbia, South Carolina, for Appellant. Robert Frank Daley, Jr., OFFICE OF THE

UNITED STATES ATTORNEY, Columbia, South Carolina,

for Appellee. ON BRIEF: William N. Nettles, United States
Attorney, J.D. Rowell, Assistant United States Attorney,

OFFICE OF THE UNITED STATES ATTORNEY, Columbia, South Carolina, for Appellee.

OPINION

NIEMEYER, Circuit Judge:

After Nicolas Carpio-Leon, a citizen of Mexico, was

indicted for possessing firearms while being "illegally or

unlawfully in the United States," in violation of 18 U.S.C.

§ 922(g)(5), he filed a motion to dismiss the charge, contending that § 922(g)(5) violated his rights under the Second and

Fifth Amendments to the United States Constitution. The district court denied Carpio-Leon’s motion, and Carpio-Leon

then pleaded guilty to that charge, as well as to an illegal

entry charge, reserving, as part of his plea agreement, the

right to appeal the district court’s conclusion that § 922(g)(5)

is constitutional.

Concluding that § 922(g)(5) is constitutional, we affirm. On

Carpio-Leon’s Second Amendment challenge, we conclude

that the scope of the Second Amendment does not extend to

provide protection to illegal aliens, because illegal aliens are

not law-abiding members of the political community and

aliens who have entered the United States unlawfully have no

more rights under the Second Amendment than do aliens outside of the United States seeking admittance. On CarpioLeon’s Fifth Amendment challenge, we conclude that prohibiting illegal aliens, as a class, from possessing firearms is

rationally related to Congress’ legitimate interest in public

safety.

I

Following a consensual search of Carpio-Leon’s home on

February 24, 2011, in Orangeburg, South Carolina, Immigra2 UNITED STATES v. CARPIO-LEON
tion and Customs Enforcement agents recovered a .22 caliber

Marlin rifle, a 9 mm Hi-Point model C pistol, and ammunition. Carpio-Leon admitted that he had stored the firearms in

his master bedroom and that he was in the United States illegally. He was thereafter indicted in two counts charging him

with (1) possession of a firearm by an alien "illegally or

unlawfully in the United States," in violation of 18 U.S.C.

§ 922(g)(5)(A); and (2) illegal entry into the United States, in

violation of 8 U.S.C. § 1325(a)(2).

Carpio-Leon filed a motion to dismiss Count I on the

ground that § 922(g)(5) violates his rights under the Second

Amendment and the Due Process Clause of the Fifth Amendment. At the hearing on the motion, he introduced evidence

that he and his wife had lived in Orangeburg for some 13

years and had three children, all of whom were born in the

United States; that he had no prior criminal record; that he

had filed income tax returns; and that "a .22 caliber and a 9

mm pistol could be the type of arms one would use for protection of their homes and children." He also stipulated that he

was in the United States illegally and that he had used a false

social security number to obtain a driver’s license.

The district court denied Carpio-Leon’s motion, concluding

that "Heller [554 U.S. 570 (2008)] and other Supreme Court

precedent foreclose [his] argument that aliens illegally present

in the United States are among those protected by the Second

Amendment." Alternatively, the court ruled that § 922(g)(5)

survives intermediate scrutiny, the relevant standard, because

"[g]iven Congress’s legitimate concerns about the dangers

potentially posed by individuals who have violated this country’s immigration laws and either entered or remain present

inside its borders illegally, § 922(g)(5)(A) reasonably

addresses the governmental objective of keeping firearms out

of the possession of illegal aliens." The court rejected CarpioLeon’s Fifth Amendment claim because it found, for the same

reasons given in its analysis of his Second Amendment claim,

UNITED STATES v. CARPIO-LEON 3
that § 922(g)(5) does not deprive Carpio-Leon of any fundamental constitutional right.

After the court denied his motion to dismiss, Carpio-Leon

entered a conditional guilty plea to both counts of the indictment, reserving the right to appeal the issue of § 922(g)(5)’s

constitutionality. The court sentenced Carpio-Leon on October 25, 2011, to time served on Count I and to six months’

imprisonment on Count II, with both sentences to run concurrently. It ordered two years’ supervised release on Count I

and, as additional conditions, directed Carpio-Leon (1) "to

surrender to a duly-authorized immigration official for deportation consideration in accordance with established procedures provided by the Immigration and Naturalization Act, 8

U.S.C. § 1101 et seq." and (2) "not [to] re-enter the United

States for the duration of supervised release and not without

the approval of the United States Attorney General or the Secretary of Homeland Security."

This appeal followed.

II

Carpio-Leon contends that possession of firearms typically

used for self-defense in one’s home is protected by the Second Amendment, even when such possession is by an illegal

alien. Recognizing the historical analysis required in construing the Second Amendment, he argues that the Second

Amendment could not have been intended to exclude illegal

aliens from its scope because "in 1791, attitudes toward immigration were the reverse of today’s attitudes" and "immigrants

—also known as ‘settlers’—were deemed absolutely necessary to the development and survival of the new nation."

Carpio-Leon also argues that "there is no empirical evidence

demonstrating that undocumented workers (in their homes)[,]

the classification into which [he] falls[,] are any more dangerous to society than legal aliens or, for that matter, native born

United States citizens." Thus, he asserts, § 922(g)(5) is not

4 UNITED STATES v. CARPIO-LEON
narrowly tailored "to serve a compelling government interest."

The government contends that the Second Amendment

does not protect illegal aliens because it "codified a preexisting right [to bear arms] that historically has been enjoyed

[only] by law-abiding, responsible citizens, and illegal aliens

are necessarily not law abiding." In any event, it argues that

§ 922(g)(5) survives intermediate scrutiny by serving an

important interest in public safety. It also notes that Congress

has "broad power over immigration-related matters and can

choose to disarm illegal aliens."

We have not had occasion to address a Second Amendment

challenge to 18 U.S.C. § 922(g)(5). The Fifth, Eighth, and

Tenth Circuits, however, have upheld the provision in the face

of a Second Amendment challenge, and we have found no

court of appeals decision that has found it unconstitutional.

The Fifth Circuit and the Eighth Circuit held that the protection of the Second Amendment does not extend to illegal

aliens. See United States v. Portillo-Munoz, 643 F.3d 437, 442

(5th Cir. 2011), cert. denied, 132 S. Ct. 1969 (2012); United

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

curiam), cert. denied, No. 11-9452, 2012 WL 993946 (U.S.

June 25, 2012). And the Tenth Circuit avoided the question of

whether illegal aliens are protected by the Second Amendment and upheld § 922(g)(5) because it passed intermediate

scrutiny. See United States v. Huitron-Guizar, 678 F.3d 1164,

1169–70 (10th Cir. 2012).

As we have previously observed, "[a]ny Second Amendment analysis must now begin with the Supreme Court’s

recent seminal decision in Heller, which held that the Second

Amendment [providing that ‘the right of the people to keep

and bear Arms, shall not be infringed’] codified a ‘preexisting’ right that allows individuals to keep and bear arms."

United States v. Carter, 669 F.3d 411, 414 (4th Cir. 2012)

(citing District of Columbia v. Heller, 554 U.S. 570, 592, 595

UNITED STATES v. CARPIO-LEON 5
(2008)). In Heller, the Court, finding that the Second Amendment protects an individual right to bear arms, struck down

the District of Columbia’s bans on handgun possession in the

home and on having a firearm in the home that is immediately

operable. Heller, 554 U.S. at 635. But in doing so, the Court

cautioned that the right to bear arms has limits. "Of course the

right [to bear arms] [is] not unlimited, just as the First

Amendment’s right of free speech [is] not." Id. at 595.

Thus, the Second Amendment does not guarantee the right

to possess for every purpose, to possess every type of weapon,

to possess at every place, or to possess by every person. See

United States v. Chester, 628 F.3d 673, 676 (4th Cir. 2010)

("Significantly, Heller recognized that the right to keep and

bear arms, like other Constitutional rights, is limited in scope

and subject to some regulation"); Carter, 669 F.3d at 415

(explaining that under Heller, "the right to keep and bear arms

depends not only on the purpose for which it is exercised but

also on the relevant characteristics of the person invoking the

right"); Huitron-Guizar, 678 F.3d at 1166 ("The right to bear

arms, however venerable, is qualified by what one might call

the ‘who,’ ‘what,’ ‘where,’ ‘when,’ and ‘why’"). As the

Heller Court itself enumerated the limitations, the Constitution does not "protect the right of citizens to carry arms for

any sort of confrontation," 554 U.S. at 595; the right to bear

"arms" does not guarantee the right to possess every type of

weapon, id. at 627; and not every person has the right to possess a firearm—"[N]othing in our opinion should be taken to

cast doubt on long-standing prohibitions on the possession of

firearms by felons and the mentally ill," id. at 626-27. The

Court also noted that the "presumptively lawful regulatory

measures" it identified were only "examples" and that its list

did "not purport to be exhaustive." Id. at 627 n.26.

To apply Heller, we follow the two-step approach set forth

in Chester, asking first

whether the challenged law imposes a burden on

conduct falling within the scope of the Second

6 UNITED STATES v. CARPIO-LEON
Amendment’s guarantee. This historical inquiry

seeks to determine whether the conduct at issue was

understood to be within the scope of the right at the

time of ratification. If it was not, then the challenged

law is valid.

Chester, 628 F.3d at 680 (internal quotation marks and citations omitted). If, however, the regulation is found to burden

conduct that falls within the scope of the Second Amendment’s protections, "we move to the second step of applying

an appropriate form of means-end scrutiny." Id.

Employing this analytical structure here, we start by determining whether the scope of the Second Amendment includes

the protection of aliens who are illegally in this country.

Beginning with the text, the Second Amendment provides

that "the right of the people to keep and bear Arms shall not

be infringed." U.S. Const. amend. II (emphasis added). In providing its protection to "the people," the Amendment is distinguishable from the Fifth and Fourteenth Amendments, which

provide protections to "persons." As Heller noted, the term

"the people" is a "‘term of art,’" which is also used in the First

and Fourth Amendments, that "‘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.’" Heller, 554 U.S. at 580

(quoting United States v. Verdugo-Urquidez, 494 U.S. 259,

265 (1990)).

Heller does not make clear, however, whether illegal aliens

can ever be part of the political community and therefore be

included in the class of persons labeled "the people." Heller

does frequently connect arms-bearing and "citizenship." For

example, its analysis of the phrase "right of the people" ends

by concluding, "We start therefore with a strong presumption

that the Second Amendment right is exercised individually

and belongs to all Americans." Heller, 554 U.S. at 581

UNITED STATES v. CARPIO-LEON 7
(emphasis added); see also id. at 595, 625, 635 (connecting

citizenship and the right to bear arms). We should be cautious,

however, in assuming that the Court defined "the people" as

excluding illegal aliens because the Court used VerdugoUrquidez to explain the meaning of "the people." In VerdugoUrquidez, the Court noted that its assumption in I.N.S. v.

Lopez-Mendoza, 468 U.S. 1032 (1984), that the Fourth

Amendment applies to illegal aliens is not "dispositive of how

the Court would rule on a Fourth Amendment claim by illegal

aliens in the United States if such a claim were squarely

before [it]." Verdugo-Urquidez, 494 U.S. at 272. Though

Verdugo-Urquidez certainly did not rule out the possibility

that illegal aliens have only limited Fourth Amendment rights,

it did not rule on whether illegal aliens were part of "the people." Id. at 272–73. The Supreme Court’s precedent is therefore not clear on whether "the people" includes illegal aliens.

Here, we need not limit our analysis to the scope of the

term "the people" and thereby become enmeshed in the question of whether "the people" includes illegal aliens or whether

the term has the same scope in each of its constitutional uses.*

*Were we to limit our analysis to the scope of the term "the people,"

we would also have to recognize that groups like women, Native Americans, and blacks may not have been part of the political community at the

time of the founding but are today within the class that we refer to as "the

people." In this same vein, it was understood that Catholics could be disarmed in England prior to the founding, but again today they are within

the class that we refer to as "the people." The Heller Court accepted this

analytical approach when it determined what today may be classified as

"arms." It stated: 

Some have made the argument, bordering on the frivolous, that

only those arms in existence in the 18th century are protected by

the Second Amendment. We do not interpret constitutional rights

that way. Just as the First Amendment protects modern forms of

communications, e.g., Reno v. American Civil Liberties Union,

521 U.S. 844, 849 (1997), and the Fourth Amendment applies to

modern forms of search, e.g., Kyllo v. United States, 533 U.S. 27,

35–36 (2001), the Second Amendment extends, prima facie, to all

instruments that constitute bearable arms, even those that were

not in existence at the time of the founding. 

Heller, 554 U.S. at 582. 

8 UNITED STATES v. CARPIO-LEON
This is because Heller concludes, through a distinct analysis,

that the core right historically protected by the Second

Amendment is the right of self-defense by "‘law-abiding,

responsible citizens.’" Carter, 669 F.3d at 416 (emphasis

added) (quoting Heller, 554 U.S. at 635); see also United

States v. Moore, 666 F.3d 313, 319 (4th Cir. 2012) (holding

that a defendant with prior felony and violent crime convictions "simply does not fall within the category of citizens to

which the Heller court ascribed the Second Amendment protection of ‘the right of law-abiding responsible citizens to use

arms in defense of hearth and home’" (quoting Heller, 554

U.S. at 635)); United States v. Masciandaro, 638 F.3d 458,

470 (4th Cir. 2011) (identifying the "fundamental," core right

of the Second Amendment as self-defense in the home by a

law-abiding citizen) (emphasis added), cert. denied, 132 S.

Ct. 756 (2011).

The Heller Court reached the Second Amendment’s connection to law-abiding citizens through a historical analysis,

independent of its discussion about who constitutes "the people." See Heller, 554 U.S. at 579-81. The Court read United

States v. Miller, 307 U.S. 174 (1939), to say that "the Second

Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes." Heller,

554 U.S. at 625 (emphasis added). When looking at prior gun

regulation, the Court found that "[f]or most of our history, the

Bill of Rights was not thought applicable to the States, and the

Federal Government did not significantly regulate the possession of firearms by law-abiding citizens." Id. (emphasis

added). The Court was careful to note that its opinion should

not be read to limit the government’s ability to disarm individuals who cannot be trusted with firearms. See id. at 626

(stating that "nothing in our opinion should be taken to cast

doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill"). Finally, the Court concluded that "whatever else [the Second Amendment] leaves to

future evaluation, it surely elevates above all other interests

UNITED STATES v. CARPIO-LEON 9
the right of law-abiding, responsible citizens to use arms in

defense of hearth and home." Id. at 635 (emphasis added).

Even though the Heller Court stressed that the core right of

the Second Amendment protects law-abiding members of the

political community, it did not face a law prohibiting firearms

possession by a particular class of persons. Nonetheless, we

can employ the historical analysis it prescribed to apply its

observations to this case, see Chester, 628 F.3d at 680, and

thus to reach the conclusion that we do—that illegal aliens do

not belong to the class of law-abiding members of the political community to whom the Second Amendment gives protection.

"[M]ost scholars of the Second Amendment agree that the

right to bear arms was tied to the concept of a virtuous citizenry and that, accordingly, the government could disarm

‘unvirtuous citizens.’" United States v. Yancey, 621 F.3d 681,

684–85 (7th Cir. 2010) (quoting United States v. Vongxay,

594 F.3d 1111, 1118 (9th Cir. 2010) (citing Glenn Harlan

Reynolds, A Critical Guide to the Second Amendment, 62

Tenn. L. Rev. 461, 480 (1995); Don B. Kates, Jr., The Second

Amendment: A Dialogue, Law & Contemp. Probs., Winter

1986, at 143, 146)). For example, felons "were excluded from

the right to arms" because they were deemed unvirtuous.

Reynolds, supra, at 480; see also David Yassky, The Second

Amendment: Structure, History, and Constitutional Change,

99 Mich. L. Rev. 588, 626 (2000) ("The average citizen

whom the Founders wished to see armed was a man of republican virtue").

Colonial governments often barred "potential subversives"

from owning firearms. Joyce Lee Malcolm, To Keep and Bear

Arms: The Origins of an Anglo-American Right 140-41

(1994) (detailing colonial laws preventing "suspect populations" from owning firearms). In several colonial states,

refusal to swear allegiance to the state or the country warranted disarmament. Saul Cornell & Nathan DeDino, A Well

10 UNITED STATES v. CARPIO-LEON
Regulated Right: The Early American Origins of Gun Control, 73 Fordham L. Rev. 487, 506 (2004) ("During the American Revolution, several states passed laws providing for the

confiscation of weapons owned by persons refusing to swear

an oath of allegiance to the state or the United States"); see

also Saul Cornell, "Don’t Know Much About History": The

Current Crisis in Second Amendment Scholarship, 29 N. Ky.

L. Rev. 657, 671 (2002) (describing the right to bear arms in

colonial Pennsylvania as a "civic right, one that was limited

to those members of the polity who were deemed capable of

exercising it in a virtuous manner"). Similarly, after Shays’

Rebellion, to obtain a pardon for taking up arms against the

state, Massachusetts required swearing allegiance to the state

and giving up firearms for three years. Cornell & DeDino,

supra, at 507–08.

Also, several early proposals for the Bill of Rights demonstrate the understanding that the core protection of the Second

Amendment belongs to law-abiding citizens. Delegates asked

the Massachusetts Ratifying Convention to recommend barring Congress from "prevent[ing] the people of the United

States, who are peaceable citizens, from keeping their own

arms." 2 Bernard Schwartz, The Bill of Rights: A Documentary History 681 (Leon Friedman et al. eds., 1971). The New

Hampshire convention similarly proposed that "Congress

shall never disarm any Citizen unless such as are or have been

in Actual Rebellion." Id. at 761.

Finally, the prefounding English right to bear arms supports

this limitation of Second Amendment rights. Cf. Heller, 554

U.S. at 592–93 (analyzing the English law prior to the founding to interpret the operative clause of the Second Amendment). In England, the right to bear arms allowed the

government to disarm those it considered disloyal or dangerous. See Patrick J. Charles, "Arms for Their Defense"?: An

Historical, Legal, and Textual Analysis of the English Right

to Have Arms and Whether the Second Amendment Should Be

UNITED STATES v. CARPIO-LEON 11
Incorporated in McDonald v. City of Chicago, 57 Clev. St. L.

Rev. 351, 376, 382-83 (2009); Malcolm, supra, at 123.

Carpio-Leon’s historical evidence does not controvert the

historical evidence supporting the notion that the government

could disarm individuals who are not law-abiding members of

the political community. Carpio-Leon argues that the historical "attitudes toward immigration were the reverse of today’s

attitudes" and that "[c]onsidering the country’s need for immigrants to settle frontier areas[,] . . . denying immigrants the

right to defend themselves and their families would have been

unthinkable." While this observation may be true, it does not

suggest that individuals who were not considered to be part of

the political community and who did not follow the community’s rules were guaranteed the right to bear arms.

In reaching our conclusion that illegal aliens do not belong

to the class of law-abiding members of the political community to whom the protection of the Second Amendment is

given, we do not hold that any person committing any crime

automatically loses the protection of the Second Amendment.

The Heller Court’s holding that defines the core right to bear

arms by law-abiding, responsible citizens does not preclude

some future determination that persons who commit some

offenses might nonetheless remain in the protected class of

"law-abiding, responsible" persons. We only hold here that

illegal aliens do not fall in the class of persons who are classified as law-abiding members of the political community for

the purpose of defining the Second Amendment’s scope. See

Portillo-Munoz, 643 F.3d at 440 (concluding that illegal

aliens are not protected by the Second Amendment because

"[i]llegal aliens are not ‘law-abiding, responsible citizens’");

Moore, 666 F.3d at 319–20 ("Moore’s three prior felony convictions for common law robbery and two prior convictions

for assault with a deadly weapon on a government official

clearly demonstrate that he is far from a law-abiding, responsible citizen" and therefore is not protected by the Second

Amendment).

12 UNITED STATES v. CARPIO-LEON
And we readily confirm our limited holding as to illegal

aliens by their particular relationship to the United States.

Defining aliens as illegal emanates from "the power to expel

or exclude aliens [which is] a fundamental sovereign attribute

exercised by the Government’s political departments [that is]

largely immune from judicial control." Shaughnessy v. United

States ex rel. Mezei, 345 U.S. 206, 210 (1953) (emphasis

added). Thus, the crime of illegal entry inherently carries this

additional aspect that leaves an illegal alien’s status substantially unprotected by the Constitution in many respects. See,

e.g., Zadvydas v. Davis, 533 U.S. 678, 693 (2001) (noting that

in Kaplan v. Tod, 267 U.S. 228, 230 (1925), "despite nine

years’ presence in the United States, an ‘excluded’ alien ‘was

still in theory of law at the boundary line and had gained no

foothold in the United States’"); see also Zadvydas, 533 U.S.

at 693 (noting the distinction between aliens who have and

have not "effected an entry into the United States" and citing

Leng May Ma v. Barber, 357 U.S. 185, 188-90 (1958) for the

proposition that there is a difference between an alien only

"paroled" into the United States and one who has "effected an

entry"); Reno v. American-Arab Anti-Discrimination Committee, 525 U.S. 471, 488 (1999) ("As a general matter—and

assuredly in the context of claims such as those put forward

in the present case—an alien unlawfully in this country has no

constitutional right to assert selective enforcement as a

defense against his deportation").

And because the regulation of aliens’ entry into the United

States draws on the exercise of national sovereignty, "the

responsibility for regulating the relationship between the

United States and our alien visitors has been committed to the

political branches of the Federal Government." Mathews v.

Diaz, 426 U.S. 67, 81 (1976). It is well settled that decisions

made by the political branches on immigration are subject

only to a "narrow standard of review." Id. at 82. The Supreme

Court, resting on the sovereign aspect of regulating aliens,

"has repeatedly emphasized that ‘over no conceivable subject

is the legislative power of Congress more complete than it is

UNITED STATES v. CARPIO-LEON 13
over’ the admission of aliens." Fiallo v. Bell, 430 U.S. 787,

792 (1977) (quoting Oceanic Navigation Co. v. Stranahan,

214 U.S. 320, 339 (1909)).

Thus, when Congress regulates illegal aliens by prohibiting

them from possessing firearms, see 18 U.S.C. § 922(g)(5), it

is functioning in a special area of law committed largely to

the political branches, see Shaughnessy, 345 U.S. at 210, and

on which we owe Congress special deference, Fiallo, 430

U.S. at 792. Indeed, in addition to making the possession of

firearms by illegal aliens a crime, Congress has also made

Carpio-Leon’s unexamined entry into the United States a

crime. See 8 U.S.C. § 1325(a); Plyler v. Doe, 457 U.S. 202,

219 n.19 (1982) (noting that "entry into the class [of illegal

aliens] is itself a crime").

For the reasons given, we hold that the Second Amendment

right to bear arms does not extend to illegal aliens, and therefore, without the need of proceeding to the second step of

Chester, we conclude that Carpio-Leon’s constitutional challenge under the Second Amendment must fail.

III

Carpio-Leon also contends that 18 U.S.C. § 922(g)(5) violates his right to equal protection under the Due Process

Clause of the Fifth Amendment. Based on his claim that the

right to bear arms in one’s home for protection is a fundamental constitutional right, he argues that we should apply strict

scrutiny in evaluating § 922(g)(5). Under strict scrutiny, he

maintains, the statute is unconstitutional because no empirical

evidence exists to justify "the statutory ban on undocumented

workers’ right to bear arms in their homes for the protection

of their families."

The government contends that 18 U.S.C. § 922(g)(5) is

subject to a rational basis review because illegal aliens do not

have a fundamental right to bear arms. Under the rational14 UNITED STATES v. CARPIO-LEON
basis level of scrutiny, which is a low hurdle, it notes that the

government has a legitimate interest in public safety.

There is no disputing that illegal aliens are "persons" protected by the Fifth Amendment. See Mathews, 426 U.S. at 77

("Even one whose presence in this country is unlawful, involuntary, or transitory is entitled to [the] constitutional protection" of the Fifth and Fourteenth Amendments); Plyler, 457

U.S. at 210 ("[E]ven aliens whose presence in this country is

unlawful, have long been recognized as ‘persons’ guaranteed

due process of law by the Fifth and Fourteenth Amendments"). And when, as here, no fundamental constitutional

right is at stake, the appropriate standard of review is the

rational-basis review. See Mathews, 426 U.S. at 82-83;

Huitron-Guizar, 678 F.3d at 1167 (applying rational basis

review to equal protection challenge of § 922(g)(5));

Vongxay, 594 F.3d at 1119 (applying rational basis review to

prohibition against felons possessing firearms "because the

right established by Heller does not apply to felons").

Carpio-Leon cannot show that there is no rational relationship between prohibiting illegal aliens from bearing firearms

and the legitimate government goal of public safety. To the

contrary, courts have identified numerous legitimate reasons

why it would be dangerous to permit illegal aliens to arm

themselves. For instance, illegal aliens are "harder to trace

and more likely to assume a false identity[,] [o]r Congress

may have concluded that those who show a willingness to

defy our law are candidates for further misfeasance or at least

a group that ought not be armed when authorities seek them."

Huitron-Guizar, 678 F.3d at 1170. Illegal aliens are "likely to

maintain no permanent address in this country, elude detection through an assumed identity, and—already living outside

the law—resort to illegal activities to maintain a livelihood."

United States v. Toner, 728 F.2d 115, 128-29 (2d Cir. 1984)

(internal quotation marks omitted) (upholding precursor to

§ 922(g)(5)). More generally, the Supreme Court has "firmly

and repeatedly endorsed the proposition that Congress may

UNITED STATES v. CARPIO-LEON 15
make rules as to aliens that would be unacceptable if applied

to citizens." Demore v. Kim, 538 U.S. 510, 522 (2003). Congress therefore surely can rationally distinguish between legal

aliens and illegal aliens.

The Omnibus Crime Control and Safe Streets Act of 1968

itself advances a rational basis for § 922(g)(5)’s prohibitions,

finding that the possession of firearms by certain classes of

persons, including "aliens who are illegally in the country"

creates:

(1) a burden on commerce or threat affecting the free

flow of commerce,

(2) a threat to the safety of the President of the

United States and Vice President of the United

States,

* * *

(4) a threat to the continued and effective operation

of the Government of the United States and of the

government of each State guaranteed by article IV of

the Constitution.

Pub. L. No. 90-351, § 1201, 82 Stat. 236.

Carpio-Leon cites empirical studies that, he contends, show

that undocumented workers are no more dangerous to society

than are native born United States citizens. But the usefulness

of such studies are at best limited and certainly do not focus

on the class of illegal aliens, which is the basis for

§ 922(g)(5). Comparing incarceration rates of men born in the

United States with the incarceration rates of foreign-born men

does not establish that unlawful entrants are less dangerous.

Those data compare incarceration rates based on a person’s

place of birth, not on whether a person is lawfully or unlawfully present in the United States. The other evidence cited by

16 UNITED STATES v. CARPIO-LEON
Carpio-Leon is a comparison between the overall level of

crime in the United States with the number of unlawful

entrants. But again, this comparison is not useful because of

the high number of variables. Carpio-Leon simply cannot

show that Congress acted irrationally in concluding that those

who are in the United States illegally should not be allowed

to possess firearms.

Accordingly, we conclude that 18 U.S.C. § 922(g)(5) survives rational scrutiny and is, therefore, also constitutional

under the Fifth Amendment.

The judgment of the district court is

AFFIRMED.

UNITED STATES v. CARPIO-LEON 17