6 F.4th 448
2d Cir.2021Background:
- Javier Perez, born in Mexico, entered the U.S. without authorization at age 13 and lived continuously in the U.S. for ~15 years; worked as a carpenter and has two U.S.-born children.
- On July 23, 2016 Perez borrowed a handgun at a Brooklyn barbeque, approached a gang fight, and fired several shots into the air to intimidate attackers; he returned the gun and was unlawfully present at the time.
- Police identified Perez from video and ballistic matches; Perez admitted firing the gun when arrested for an unrelated matter.
- Perez was indicted under 18 U.S.C. § 922(g)(5) (possession of firearm/ammunition by an alien illegally or unlawfully in the United States), moved to dismiss on Second Amendment grounds, and entered a conditional guilty plea preserving the challenge.
- The district court assumed (without deciding) that undocumented aliens may have Second Amendment protection, applied intermediate scrutiny, and upheld § 922(g)(5); Perez appealed and the Second Circuit affirmed.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Second Amendment covers undocumented aliens like Perez | Perez: long residence and ties make him part of “the people” with a Second Amendment right | Govt: either aliens are excluded or statute is permissible even if some protection exists | Court: assumed without deciding that Perez may have protection and proceeded to merits |
| Appropriate level of scrutiny for § 922(g)(5) | Perez: categorical ban burdens core Second Amendment rights and is unconstitutional | Govt: possession by unlawfully present aliens is outside the core; intermediate scrutiny applies | Court: Perez’s possession was outside the core (not in-home self-defense) and he was not “law-abiding”; applied intermediate scrutiny |
| Whether § 922(g)(5) survives intermediate scrutiny as applied to Perez | Perez: statute is a categorical, overbroad bar that is not substantially related to public safety | Govt: statute furthers important interests—public safety, traceability/commerce control, and keeping guns from those who flout law | Court: statute is substantially related to important governmental interests and survives intermediate scrutiny; conviction affirmed |
| Whether undocumented aliens are categorically excluded from the Second Amendment | Perez: substantial connections can make an alien part of “the people” | Govt/Concurrence: illegal presence places aliens outside the political community and Second Amendment protection | Court majority: declined to decide exclusion question; concurrence would hold undocumented aliens are excluded |
Key Cases Cited
- District of Columbia v. Heller, 554 U.S. 570 (2008) (articulated individual right to possess firearms for lawful purposes and identified core right as law‑abiding citizens’ home self‑defense)
- United States v. Verdugo‑Urquidez, 494 U.S. 259 (1990) ("the people" refers to members of the national community or those with sufficient connections)
- McDonald v. City of Chicago, 561 U.S. 742 (2010) (incorporated Second Amendment right against the states and reiterated Heller principles)
- New York State Rifle & Pistol Ass'n, Inc. v. Cuomo, 804 F.3d 242 (2d Cir. 2015) (adopted two‑step framework for evaluating firearm restrictions)
- United States v. Jimenez, 895 F.3d 228 (2d Cir. 2018) (upheld firearm ban for dishonorably discharged service members; discussed ‘‘law‑abiding’’ limitation)
- United States v. Carpio‑Leon, 701 F.3d 974 (4th Cir. 2012) (concluded illegal aliens are not among "the people" protected by the Second Amendment)