Undocumented Immigrants Caught in the Crossfire: Resolving the Circuit Split on “The People” and the Applicable Level of Scrutiny for Second Amendment Challenges

IntroductionNicolas Carpio-Leon had lived in the United States without immigration status for at least thirteen years.1 He was a father to three American-born children. 2 He filed his income tax returns and had no criminal record.3 He did, however, own a rifle, a pistol, and ammunition that he kept in his home to protect his family.4 On February 24, 2011, Immigration and Customs Enforcement agents found the firearms while conducting a consensual search of Carpio-Leon's home in Orangeburg, South Carolina.5 He was charged with violating 18 U.S.C. § 922(g)(5), which prohibits unlawfully present immigrants from owning or pos1United sessing firearms, and 8 U.S.C. § 1325(a)(2), which prohibits illegal entry.6 He pled guilty but appealed, asserting that § 922(g)(5) impermissibly infringed his Second Amendment right to bear arms and violated the Due Process Clause of the Fifth Amendment.7 The U.S. Court of Appeals for the Fourth Circuit determined that Carpio-Leon, and the millions of other undocumented people living in the United States, was not entitled to Second Amendment rights and affirmed the findings of the district court.8The Second Amendment provides: "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."9 But who are "the people" to whom the Bill of Rights refers?10 For the last decade, scholars and courts have struggled to define the scope of the Second Amendment, including whether undocumented immigrants are entitled to keep and bear arms.11 The conclusion has potential implica6 tions for other constitutional rights that share similar language, including the right to be free from unreasonable searches and seizures and the rights to assemble and petition.12Prior to August 20, 2015, the Fifth and Eighth Circuit Courts of Appeals had opined that undocumented immigrants are not part of "the people" entitled to Second Amendment protections.13 In 2015, the Seventh Circuit in United States v Meza-Rodriguez created a circuit split when it held that undocumented immigrants are included in "the people."14 The U.S. Supreme Court was in a position to conclusively define the scope of the Second Amendment in regard to undocumented immigrants before it denied certiorari in Meza-Rodriguez}5 Accordingly, this Note argues that the Court should have granted certiorari and held first that undocumented immigrants are part of "the people" in the Bill of Rights, and second that intermediate scrutiny is the appropriate standard for analyzing a complete ban on possession of firearms by undocumented immigrants.16 The deny First and Fourth Amendment rights-which many consider inherent-to undocumented immigrants risks pushing a "shadow population" further into isolation.17Part I of this Note provides an overview of undocumented immigration in the United States and the recent shift in Second Amendment jurisprudence.18 It also discusses the debate surrounding the phrase "the people" in the U.S. Constitution and relevant cases in the circuit courts.19 Part II reviews the lower court and the Seventh Circuit's decisions in Meza-Rodriguez and compares them with the other conflicting circuit decisions.20 Finally, Part III argues that the Seventh Circuit's holding in Meza-Rodriguez that undocumented immigrants are entitled to Second Amendment rights most appropriately interprets the Constitution and case law.21 It also argues that courts should apply intermediate scrutiny to the statute prohibiting undocumented immigrants from possessing firearms, and that the government must be held to its burden of proving that this constitutional restriction furthers a compelling government interest.22I. The Evolution of the Second Amendment and the Constitutional Rights of Undocumented ImmigrantsIn the last ten years, the Second Amendment has received more analysis and review than it had in the previous two hundred years.23 A radical shift in the interpretation of the Second Amendment from a collective right to a fundamental, individual right led to the question of whether millions of undocumented immigrants living within our nation's borders should be entitled to protection under the Second Amendment. …