Federal Court Affirms that Illegal Immigrants Cannot Possess Firearms

This is the type of firearm (a .380 Davis) Perez used in the incident. (Photo: GunsAmerica.com)

A federal appeals court affirmed this week that a law prohibiting illegal immigrants from possessing firearms is constitutional.

The ruling, handed down by a unanimous three-judge panel of the U.S. 2nd Circuit Court of Appeals, upheld a lower court decision convicting an illegal alien named Javier Perez for violating 18 U.S.C. § 922(g)(5). The law prohibits “an alien . . . illegally or unlawfully in the United States” from “possess[ing] . . . any firearm or ammunition” in or affecting commerce.

Perez and his lawyers argued that the statute is unconstitutional because it violates Second Amendment rights, which Perez believes should be applied to lawful and unlawful immigrants alike. The court disagreed.

“His interest in simply possessing firearms,” the panel wrote, “is not at the core of the Second Amendment right identified in Heller. As noted above, Heller identified the core interest of the right as self-defense in the home. Here, Perez’s possession was neither in self-defense nor in the home.”

SEE ALSO: The Subway Vigilante Who Birthed the Modern Concealed Carry Movement

The decision stems from a 2016 incident during which Perez fired a .380 caliber Davis into the air. He was attending a party in Brooklyn when he saw a group of young men with bats and machetes attacking a member of a rival gang. He asked an acquaintance to borrow his gun, ran towards the fight, and fired the Davis into the air. He returned the gun to his friend, but admitted later to firing the weapon after being arrested for a separate offense.

The court did not decide whether the Second Amendment applies to undocumented immigrants. Instead, they upheld the constitutionality of 18 U.S.C. § 922(g)(5) because it does not violate “core Second Amendment rights” in this case, and it passes the intermediate scrutiny test.

In District of Columbia v. Heller, the Supreme Court defined as the core of the Second Amendment “the right of law-abiding, responsible citizens to use arms” in self-defense in the home.

SEE ALSO: Everytown Law Announces $3M War Chest to Eliminate 2A Rights Via the Courts 

Along with not being “in the home,” the court argued that Perez cannot qualify as law-abiding because “however he may choose to live his life in the United States, his presence here is unlawful.” Since he was also not using his firearm “in the home,” the law banning illegal immigrants from owning firearms does not impact core Second Amendment rights in this case, the court ruled.

The law survives intermediate scrutiny because it achieves the important government interests of (1) preventing individuals who live outside the law from possessing guns, (2) assisting the government in regulating firearm trafficking, and (3) preventing those who have demonstrated disrespect for our laws from possessing firearms.

According to the FBI, the National Instant Criminal Background check system has denied a firearm transfer 37,713 times to illegal or unlawful aliens.

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About the author: Jordan Michaels has been reviewing firearm-related products for over six years and enjoying them for much longer. With family in Canada, he’s seen first hand how quickly the right to self-defense can be stripped from law-abiding citizens. He escaped that statist paradise at a young age, married a sixth-generation Texan, and currently lives in Tyler. Got a hot tip? Send him an email at jordan@gunsamerica.com.

{ 22 comments… add one }
  • Hold Collier June 4, 2022, 2:03 am

    So far we do not register our firearms. It is forbidden by law. The ATFE is amassing an illegal registry by transferring every FFL 4473 and all other documents dealing with firearms into a searchable database once they are obtained from “No longer in business” FFL dealers. Why do you suppose they are doing that? The dope who advocates a gun registry is completely ignorant of history. Every country that has confiscated it’s subjects firearms did so with a gun registry and by force going door to door. History documents how that has faired for the citizenry of those countries. Germany, Russia, China, Venezuela, Cuba, and multiple other countries. Millions have died because of disarmed citizens. Look at Ukraine. A very graphic current example of what happens when a country has no armed citizens. They beg for help from other saps like the US giving $60 billion in aid. Wonder why Afghanistan didn’t fly over some of the $80 billion in military weapons and equipment this brain dead administration left there?

  • DELCO August 6, 2021, 5:33 pm

    Folks our country is in trouble. When clowns like blue dog or anyone thinks that someone can sneak into our country, and then have any rights at all is someone who has lived a sheltered life and has never served or appreciated anyone who has sacrificed everything so that those of us who are CITIZENS can have our constitutional rights. The Biden administration is allowing our country to become a shit hole. Our inner cities are literally RUINED. They are never going to return to places of civility again. Our schools can’t even graduate a single student who is above 50% proficient in basic math /English. What happened to taking care of America? Biden is using poor uneducated illegals as pawns in hopes they can someday vote for a socialist Democratic Party. Why is it that all the loud mouth left wingers who make a few dollars move to all white neighborhoods? Why is it that anyone who speaks the truth about who is responsible for the 75 shootings that happen EVERY Weekend in Chicago is called a racist. The country of Hungary has the best president on earth. Look up what he has done with his borders in his country. Biden called the president of Hungary a thug for preventing illegals who wanted to invade Hungary from Syria from invading . For protecting the ways of life for its citizens. Look at Germany they allowed millions of Muslims to invade their country a few years ago , now look , a total nightmare. Germany is now dealing with more violence then ever before. Our borders are beyond important. Unfortunately democrats don’t believe in borders. Laws, or personal responsibility. Kids now are being taught to hate our flag, kneel during the anthem, and to not even acknowledge our Vets. The fact that anyone would even consider not tossing this illegal gang banger back over our half built wall is someone who obviously has no respect for those who gave all.

  • Mike Colorado August 6, 2021, 12:34 pm

    Awe yes Blue Dog spreading the manure again. It would be hilarious if it was not so treasonous.

  • BCS August 6, 2021, 11:42 am

    ALL, every single, illegal immigrant invader should be rounded up, gun or no gun and be booted out of the USA. This, the greatest country that has ever existed on planet earth was built on immigration, legal immigration. Every single illegal immigrant is a criminal. If someone wants to come to this country, come in through the front door, do it the correct way.

  • Matthew August 6, 2021, 10:28 am

    I had to take a moment and look at the issue. I do disagree with the judge. I found his ruling to be cowardly, and an attempt to please instead of a ruling on the law. There is no such thing as a “Core,” to a right, that was a reasoning that I also disagree with, by SCOTUS, and much for the same reasons.

    The right to bear arms is a birthright that belongs to all people, everywhere. But some countries do not respect rights. The needs of the moment always overcome the rights of the people. In the USA, we own our government, it belongs to us, as a people, collectively. We can keep it, end it, change it, or modify it, as we see fit, without asking permissions, without bloodshed. This is why we are a Constitutional Representative Republic. Constitutional because the Constitution is our King. Our Monarch is a piece of paper. It is who we chose as our Ruler.

    That ruler has three parts.

    Legislative – which is our House and Senate. They may make laws that are in line with the Constitution. They are given a limited set of powers, on only a few issues. Those can be found in the Enumerated Rights. An Enumerated Right is a right that was gifted to the US Government, to allow it to operate. They are numbered, and very clear. Then there is the Necessary and Proper Clause. This expands those Enumerated Rights to include those issues and items which are necessary for the application of one of the Enumerated Rights. When you head someone say, “This is UnConstitutional,” it means that the law was not based on an Enumerated Right.

    Executive – This is Law Enforcement and Foreign Affairs, and Military Affairs. Law Enforcement falls to the Militia. Has always fallen to the Militia. The President, can act within his power, which is laid out in the Constitution, to act in certain ways, and certain methods. He cannot make law, that is a power of the Legislative, and even his much touted “Executive Orders,” are NOT law, they are a clarification of an existing law. If an EO is not based on a law, then it is invalid. Recently Donald Trump crafted an EO banning bump stocks. That EO is invalid on it’s face, which means, it has no force of law, is not based on a law or an assigned power, and cannot legally be enforced. Any enforcement of that EO falls under Color of Law. It has the appearance of law, but is not.

    Judicial. And this is where I have issues. Mostly with the basis for this decision. It’s called the, “Interstate Commerce Clause.” It’s also the foundation for this ruling. Before I get to that, let me finish my thought process on the rest of what you’ve read.

    First, the House and Senate do not have a granted power to enact gun laws. They cannot legally do so. No law they write is legal, valid, or enforceable. That they are taken as legal is irrelevant. That they enforce it, is an exercise in Color of Law, not in Law Enforcement. Every gun law written by the Senate and House, is based on the Interstate Commerce Clause. I’ll post what it is in a moment.

    Second, the President cannot write laws regulating or barring weapons, with the exception of while a person is actively engaged in service to the United States. That regulation is only valid WHILE the person is in the pay of the US military or a state militia, and that regulation ends the day the person is released from active service.

    Lastly, this is the Interstate Commerce Clause. “To regulate commerce with foreign nations, and among the several states, and with the Indian tribes;” So do you see the gun regulation in there? Ammo regulations? Felons barred from buying or owning guns? Limits on how many guns you can buy? Limits on how much ammo you can own, or what caliber? What age you can buy a gun? You should, because ALL of these laws are based completely and totally on the words, “To regulate commerce with foreign nations, and among the several states, and with the Indian tribes;.”

    In Gibbons v. Ogden, 22 U.S. 1 (1824), the Supreme Court held that intrastate activity could be regulated under the Commerce Clause, provided that the activity is part of a larger interstate commercial scheme.

    In Swift and Company v. United States, 196 U.S. 375 (1905), the Supreme Court held that Congress had the authority to regulate local commerce, as long as that activity could become part of a continuous “current” of commerce that involved the interstate movement of goods and services.

    In NLRB v. Jones & Laughlin Steel Corp, 301 U.S. 1 (1937), the Court recognized broader grounds upon which the Commerce Clause could be used to regulate state activity. Most importantly, the Supreme Court held that activity was commerce if it had a “substantial economic effect” on interstate commerce or if the “cumulative effect” of one act could have an effect on such commerce.

    In 1995, United States v. Lopez, 514 U.S. 549 (1995) the defendant was charged with carrying a handgun to school in violation of the federal Gun Free School Zones Act of 1990 (Joe Biden wrote this law). The defendant argued that the federal government had no authority to regulate firearms in local schools, while the government claimed that this fell under the Commerce Clause, arguing that possession of a firearm in a school zone would lead to violent crime, thereby affecting general economic conditions. The Supreme Court rejected the government’s argument, holding that Congress only has the power to regulate the channels of commerce, the instrumentalities of commerce, and action that substantially affects interstate commerce.

    In Gonzales v. Raich, 545 U.S. 1 (2005), the Court upheld federal regulation of intrastate marijuana production. They reasoned that growing weed yourself prevented you from buying it illegally in other states, or reduced, even a tiny bit, the amount of weed bought in other states, therefore giving the ICC power to regulate, or ban it.

    The Bill of Rights addresses this in the preamble when it writes, “THE Conventions of a number of the States, having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added…”

    The key word here is, “Misconstruction.” Misconstruction is defined as purposely misinterpreting something. In this instance, it means taking the seven effective words of the Interstate Commerce Clause and misinterpreting them in a way that grants a huge increase of power, to regulate that which is untouchable without the misunderstanding. So, the court granted a HUGE increase in power to the US government, to regulate how much broccoli you eat or what caliber of ammo you can buy, when, and how.

    Lastly, the Judiciary. “The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution…” Gun rights, cannot be brought into court except under the 2nd amendment. No law can be valid, except a law written under the 2nd amendment. No law can be put on our books that regulate ARMS, and this includes tents, knives, or any weapon that may be used to harm another, get to a battle, return from a battle, or engage in conflict and killing while at war. What this means is that the only vehicle that can bring a case into court is the 2nd amendment. While the ICC is over-extended so far as to be as thin as a spider’s web, the most purposely misunderstood and mistranslated items in our Constitution is the 2nd amendment.

    It reads, “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.” I’ll “enumerate,” the problems with the way we read it.

    1. We wrote it, not the government. We did not write it to grant or restrict our own rights, but to restrict the government’s power. “Misconstruction or abuse of power” It is proper to read the 2nd like this, with the Preamble intact. “THE Conventions of a number of the States, having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: 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.”

    2. The 2nd can never, legally, be used to restrict OUR rights, at all, period.

    3. Infringe is a patent term. It means that you own the CONCEPT. You define the CONCEPT. You Define the APPLICATION. If you own the patent, you can use it, refuse to use it, define, re-title it, self regulate, but you CANNOT have an outside force do that to you. If you own the patent for a Green Widget, you OWN that widget and every one made, even if you do not make it. If someone makes it and sells it, you can stop them, and you can take the money they made from YOUR widget. When the government INFRINGES on YOUR widget, the Right to Bear Arms, THEY owe YOU for the assault on YOUR right. That is why WE used the term Infringe instead of “Abridge,” which is what we used to bar the government from our right to communicate.

    With Arms, we define what we consider arms. We define what it is, how we use it, and when we use them. WE do, not them!

    This brings us back full circle.

    Can an illegal own a weapon? This case should never have been heard. The court stated, “In District of Columbia v. Heller, the Supreme Court defined as the core of the Second Amendment “the right of law-abiding, responsible citizens to use arms” in self-defense in the home.”

    The COURT cannot DEFINE the scope of the 2nd amendment, only WE can. We wrote it. Then defining it is the same as a prisoner defining the terms of his incarceration, and changing it when they feel jumpy.

    The Court also DEFINED the right to only belong to those who are law abiding, and responsible. Responsible is a very fluid term, and varies from person to person. For instance, Everytown would define irresponsible to include everyone who opens carries or owns a weapon they don’t like. Bloomburg would consider anyone who owns a weapon at all to be irresponsible. The COURT does not get to make this decision! It is OUR decision. They also determined that felons cannot own arms. To the disarmed man who was in jail 365 days, it’s a bitter look at the man who spent 364 days in jail and can still own weapons.

    “…they upheld the constitutionality of 18 U.S.C. § 922(g)(5) because it does not violate “core Second Amendment rights” in this case, and it passes the intermediate scrutiny test.”

    Given that there is NO SUCH THING AS A 2ND AMENDMENT RIGHT, how can there be a “Core,” right? The 2nd grants no rights, regulates no right, and I will give a hundred dollars to someone who can show me it does. We wrote it to bar the federal government from infringing on OUR right. WE define it. I cannot remember anywhere we’ve collectively, as a nation, come together to define the “Core,” of our right. All I see is a court that has no power over the right, defining it. Has no control over even the definition of the right, defining it. Who do not even have the power to head a case on the right to bear arms, can only hear a case based on the 2nd, defining what it means.

    Lastly, “The law survives intermediate scrutiny because it achieves the important government interests…”

    Tell me, judge, what would you say if I said King George had a compelling government interest in disarming the colonies?

  • bOB August 6, 2021, 8:44 am

    ANY Poster who uses ANY PRONOUNS as a Personal Descriptor and/or Greeting DERSERVES ZERO RESPECT ABD RECOGNITION

    GO AWAY he/him

  • Gary Lee August 6, 2021, 6:51 am

    I totally agree, however this ruling is hollow. Ya’ can’t keep em’ out of the country. You can’t keep em’ from sucking up government benefits. You can’t keep em’ from fraudulently stealing American jobs. And you can’t keep the Administration from shipping them into your town in the middle of the night. What are you gonna do with an illegal alien caught with a gun? Deport em’?

    • kc (sire/your majesty) August 6, 2021, 7:20 am

      Why not REALLY put Mexico’s shorts in a bunch? If we’re not deporting the criminals, just deport the gun to Mexico…

  • graceythecat August 6, 2021, 6:23 am

    Don’t forget to charge them with a felony for the possession and also they don’t have a right to vote and charge them for felony voter fraud!

  • Dannis Peavy August 6, 2021, 4:08 am

    I read it as The Right Of The People not the privilege of the citizen/subject .

    • DELCO August 6, 2021, 5:13 pm

      DANNIS? WHAT ? They are illegally in our country PERIOD!!! Then on top of being hear illegally now this guy who is in a Gang on top of that is shooting a Gun into the air on our streets. Get outta hear. Our country is being INVADED. Absolutely INVADED by people who have no business being hear.

  • Snake August 4, 2021, 12:25 pm

    In my opinion, this is the right decision, even if Mr. Perez used the gun to scare off attackers. Just because you are in another country you cannot expect that the granted rights of its constitution are automatically your rights as well, especially if you are an illegal alien, who already has proven that he/she does not care about the country’s law, by running across the border without the approval of its government officials. I wonder if they really believed that they would get through with this, because this would have definitely caused a chaos in the entire country, if suddenly all of these already non-law abiding illegal aliens are running around with guns.

    • Blue Dog (he/him) August 5, 2021, 3:08 pm

      To your point, sir, that aliens living in a foreign land cannot and should not expect to be granted the full rights of citizens of that nation, I do agree with you in the most general sense. If I, as an American citizen, travel to another country like Mexico, Greece or China, I should not expect the government to grant me the same rights it grants to its own citizens; they have their own ways and I should not expect them to act like Americans just for li’l ol’ me. However, we are talking about a specific country, the United States, and our government extends these rights universally, regardless of citizenship, residency or undocumented status. Every resident of America can expect to equally enjoy such wonderful rights as freedom of speech, freedom of religion, freedom of expression, rights to housing, health care, education, the right to a speedy trial and the right not to be compelled to testify against yourself in that trial. This universiality is central to the very fabric of our democracy; erode these rights at your own peril. It is in the selective denial of these rights that the foundation for authoritarian dictatorship is laid.

      You are absolutely right that his use of this firearm was reckless and in fact criminal. You are absolutely right that in this case, his possession of a firearm not registered to him was reckless and criminal. You are right that not all rights are extended throughout every nation in the world, nor even every liberal democracy in the world. But you sir are wrong, and recklessly so, that the undocumented in the United States of America are not given these same rights as those of us who can prove that we should be here.

      • kc (sire/your majesty) August 6, 2021, 7:18 am

        Blue Dog complaining about “selective denial of rights?” Pot, meet kettle.

      • Hondo August 7, 2021, 6:43 pm

        Good God you are a blithering idiot , kindly take your stupid opinion elsewhere ,dumbass.

    • Rich Zellich August 7, 2021, 1:48 am

      They didn’t rule on whether the right applied to illegal immigrants.

      What they ruled on was what they call a “core right as established by Heller”, which was incorrect, Heller said there was more than just a right to defend yourself in your home.

      Then they went on to compound their error by saying the law held up to “intemediate” scrutiny, which was also incorrect – SCOTUS said that 2nd Amendment cases require “strict” scrutiny.

      So the 3-judge panel had its collective head up its collective ass, and got the whole thing wrong.

  • Blue Dog (he/him) August 3, 2021, 9:32 pm

    I can pretty easily see both sides of this issue. On one hand, common sense suggests that we would be best served registering firearms nationally, especially handguns and modern sporting rifles, and unregistered individuals are unlikely to register their handguns if their own paperwork is not in order. After all, paperwork is the American way. On the other hand, the rights extended under the Constitution are recognized as being universal. The other rights granted in the Bill of Rights extend universally, to the native bourne and the sojourner among us. Undocumented residents of the US have first amendment rights of free speech, exercise of religion, et al; they have third amendment guarantees against the quartering of troops in their own homes. Why then could they not participate within the confines of the second amendment? Or shall the right to register as a gun owner in the state-run militia be infringed for the undocumented sojourners among us?

    • TJ August 6, 2021, 6:15 am

      Blue pup
      Your pathetic, living in your utopian world makes me sick…….

    • Thoughtful August 6, 2021, 7:32 am

      Blue Dog,
      Please go peddle your tyrannical, gun grabbing views at the Giffords anti gun organization. Your anti 2nd amendment views here are not welcome.

    • Foosball August 6, 2021, 10:37 am

      @ Blue Dog (he/him): The illegal alien is not entitled to the 2nd Amendment just as an American citizen is not if he has committed a felony. Crossing our border illegally violates federal and bordering state laws. You can try to spew out all that garbage but it won’t fly with those of us who know and understand the laws, and the Constitution.

      • srsquidizen August 6, 2021, 11:27 am

        It is long-settled law that illegal aliens are NOT entitled to the same 2A rights as U.S. citizens. This “Blue Dog” ignoramus has probably never even seen Form 4473 most of us here are familiar with. That form very explicitly DISQUALIFIES anyone here illegally from buying a gun and makes it a felony for such foreigners to even ATTEMPT to obtain a gun by lying on that form, whether they were previously a criminal or not.

        • Blue Dog (he/him) August 6, 2021, 3:02 pm

          Your argument assumes that all firearm purchases or transfers must involve a 4473 background check form. I am sad to say that is not the case; transfers between individuals in some states do not require background checks, the gun show loophole. As a former FFL dealer, I am quite familiar with the 4473 form and the series of disqualifying questions. I also remember that the President once said on national tv that we just don’t have the time to prosecute everybody who lied on that same 4473 form. An undocumented resident of the United States need only secure a firearm through one of these face-to-face gun show loophole private transfers and bypass the background check entirely. I don’t like it any more than you do and I agree with you that we need universal background checks and that universal background checks need to be fortified with registration. This is the best way to keep track of what guns are where in the US, citizens, legal residents or otherwise.

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