Following a stipulated bench trial, Ignacio Jimenez-Shilon was found guilty of violating 18 U.S.C. § 922(g)(5)(A), which makes it unlawful for an “alien” to possess a firearm “in or affecting” interstate or foreign commerce. He appealed the district court’s denial of his motion to dismiss the indictment on the ground that the statute itself violates the Second Amendment to the U.S. Constitution.
Jimenez-Shilon did not dispute at trial or on appeal that he was an “alien” for purposes of the indictment, which § 922(g)(5)(A) defines as anyone present in the U.S. illegally, unlawfully, or pursuant to a nonimmigrant visa. Rather, he argued that, having lived in the U.S. for more than 20 years, he was included in the definition of “the people” to whom the Second Amendment grants the right to bear arms. He also appealed the district court’s denial of his request for a hearing to introduce evidence of the extent of his ties to the U.S.
Applying a de novo standard of review, the Eleventh Circuit held that the Second Amendment does not confer the right to bear arms upon illegal aliens. In reaching this conclusion, the Court acknowledged the Supreme Court’s decision in Verdugo-Urquidez, which had defined the same term of art (“the people”) in the Fourth Amendment context to include those: 1) who are part of a national community, or 2) who have otherwise developed sufficient connection with the U.S to be considered part of the community.
However, the Court declined to consider whether “the people” may ever properly include illegal aliens. Instead, it relied heavily on the Supreme Court in Heller for two propositions: 1) that the Second Amendment enshrined a pre-existing right, and 2) that even individuals included in “the people” could be denied that right without violating the Second Amendment if they did not possess the right at the time it was enshrined.
The Court then reviewed English law and various State constitutions to conclude that illegal aliens did not possess the right to bear arms at the time the Constitution was ratified. Therefore, the Second Amendment did not grant protection of the right to illegal aliens so, even if he had been granted a hearing, Jimenez-Shilon could not have developed a record sufficient to come under its protection.
Judge Newsom concurred in his own opinion to denounce the use of a two-part inquiry to resolve Second Amendment claims. The question was moot here, as the question presented by the facts was resolved wholly by reference to the Amendment’s text and historical context. However, to the extent lower courts have devised a second part to the inquiry, or that a prior decision of the Court has suggested it would be proper to use a two-part test in a different context, it should not become the rule (and never should have become the rule for resolving claims arising under other Amendments).
Appeal from the Middle District of Florida
Opinion by Newsom, joined by Branch and Brasher
Concurring opinion by Newsom
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