What Happened?

All 10 federal appeals courts that have ruled on it agree the government can bar people living in the U.S. without legal status from having guns. What they don't agree on is whether those people count among "the people" the Constitution protects, a question that reaches protests and police searches as well as firearms.

The law at issue makes it a federal crime for anyone "illegally or unlawfully in the United States" to possess a gun. A Congressional Research Service (CRS) report published Friday, Sept. 25, found the courts have upheld it through three conflicting approaches:

  • The Sixth Circuit, in *United States v. Escobar-Temal*, said people here unlawfully can be among "the people" the Second Amendment covers, but disarming them fits the nation's history of gun laws.
  • The Fourth Circuit, in *United States v. Murillo-Lopez*, said they fall outside the Second Amendment entirely.
  • The First Circuit, in *United States v. Vizcaino-Peguero*, set that question aside and upheld the law on historical grounds alone.

Why Does It Matter To Me?

The phrase "the right of the people" also appears in the First Amendment, which protects the right to gather peacefully and petition the government, and in the Fourth Amendment, which guards against unreasonable searches and seizures. CRS found that rulings excluding people here unlawfully from "the people" could call into question whether those protections apply to them.

Even courts that count them among "the people" have let the government limit their rights, CRS notes. That leaves unsettled what rights people without legal status can claim at a protest or during a police search.

Both Sides, Now

The Justice Department has argued that "the people" means members of the nation's political community, citing the Supreme Court's 2008 ruling in District of Columbia v. Heller. The Fourth Circuit, which agreed, also pointed to historical laws allowing the government to disarm people seen as outside that community.

Challengers argue the Second Amendment's text reaches beyond citizens. The defendant in the Sixth Circuit case had lived in the U.S. for more than a decade, and the Seventh Circuit has held that people here unlawfully with strong enough ties to the country can count among "the people."

What Happens Next?

The Supreme Court has never ruled directly on this law and has turned down appeals from cases in all three camps, CRS found. Because every appeals court has upheld the ban, there is no disagreement over the outcome pushing the justices to step in. A separate case could still change the ground rules. The Trump administration asked the Supreme Court in April to take up *United States v. Hembree*, after an appeals court ruled the felon gun ban unconstitutional for someone with a prior drug possession conviction.

The Court is weighing that request for its term that begins Monday, Oct. 5. If the justices take the case, their ruling would guide how lower courts judge gun bans covering entire groups of people, including this one.

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