{"id":91817,"date":"2023-04-13T01:25:38","date_gmt":"2023-04-13T06:25:38","guid":{"rendered":"https:\/\/milesfortis.com\/?p=91817"},"modified":"2023-04-13T01:25:38","modified_gmt":"2023-04-13T06:25:38","slug":"91817","status":"publish","type":"post","link":"https:\/\/milesfortis.com\/?p=91817","title":{"rendered":""},"content":{"rendered":"

Litigation Highlight: Eighth Circuit Rejects Challenge to Illegal-Alien Prohibition at Bruen Step One<\/a><\/p>\n

On April 4, the Eighth Circuit issued a published\u00a0decision<\/a>\u00a0in\u00a0United States v. Sitladeen<\/em>\u00a0rejecting a post-Bruen<\/em>\u00a0challenge to the federal ban on \u201calien[s] . . .\u00a0 illegally or unlawfully in the United States\u201d possessing firearms.\u00a0 The decision employed a different \u201cstep one\u201d analysis than the Fifth Circuit panel in\u00a0Rahimi<\/em><\/a>, ultimately focusing on\u00a0status<\/em>\u00a0rather than conduct to determine whether the Second Amendment is implicated.\u00a0 The decision in\u00a0Sitladeen<\/em>\u00a0also relied heavily on pre-Bruen<\/em>\u00a0cases, illustrating the continued relevance of decisions applying\u00a0Heller<\/em>\u00a0and using a textual-historical analysis to determine the scope of the Second Amendment.<\/p>\n

The plaintiff, a Canadian citizen and fugitive (subject to an outstanding Canadian arrest warrant for murder), was stopped in Minnesota with 67 guns and a number of high-capacity magazines and indicted for possessing firearms as an illegal alien in violation of\u00a018 U.S.C. \u00a7 922(g)(5)<\/a>.\u00a0 The district court initially denied Sitladeen\u2019s motion to dismiss under the Second Amendment, relying on the Eighth Circuit\u2019s 2011 one-paragraph\u00a0per curiam\u00a0<\/em>decision<\/a>\u00a0in\u00a0United States v. Flores<\/em>.\u00a0\u00a0Flores\u00a0<\/em>held that \u201cthe protections of the Second Amendment do not extend to aliens illegally present in this country.\u201d\u00a0 That decision favorably cited the Fifth Circuit\u2019s 2011\u00a0opinion<\/a>\u00a0in\u00a0United States v. Portillo-Munoz<\/em>\u00a0upholding 922(g)(5):<\/p>\n

Whatever else the term means or includes, the phrase \u201cthe people\u201d in the Second Amendment of the Constitution does not include aliens illegally in the United States such as Portillo, and we hold that section 922(g)(5) is constitutional under the Second Amendment.<\/p><\/blockquote>\n

After Sitladeen appealed to the Eighth Circuit, the Supreme Court decided\u00a0Bruen<\/em>.
\nThe appellate panel requested supplemental briefing, in which Sitladeen argued that\u00a0Bruen<\/em>\u00a0required the panel to overrule\u00a0Flores<\/em>.
\nThe panel disagreed, holding that\u00a0Flores<\/em>\u2019 step-one analysis was consistent with the first step of the\u00a0Bruen<\/em>\u00a0test because the judges there \u201creached [their] conclusion by considering\u2014consistent with what\u00a0Bruen<\/em>\u00a0now requires\u2014whether the conduct regulated by \u00a7 922(g)(5)(A) was protected by the plain text of the Second Amendment.\u201d
\nThe opinion observed that other courts have criticized this approach and argued in favor of \u201cconstru[ing] the phrase broadly at the outset of the analysis and then consider[ing] whether history and tradition support the government\u2019s authority to impose the regulation.\u201d
\nWhile the panel noted concern that a more probing inquiry into whether the defendant is within \u201cthe people\u201d protected by the Second Amendment \u201cmight enable some courts to manipulate the Second Amendment\u2019s \u2018plain text\u2019 to avoid ever reaching\u00a0Bruen<\/em>\u2019s \u2018historical tradition\u2019 inquiry,\u201d the judges ultimately read\u00a0Bruen<\/em>\u00a0to essentially confirm the mode of inquiry in\u00a0Flores<\/em>.
\nTherefore, the panel found itself bound by\u00a0Flores<\/em>\u2019 determination \u201cthat unlawful aliens are not part of \u2018the people\u2019 to whom the protections of the Second Amendment extend,\u201d and rejected Sitladeen\u2019s Second Amendment challenge.<\/p>\n

<\/p>\n

Sitladeen also argued that 922(g)(5) is invalid under the Fifth Amendment\u2019s equal protection clause because it treats illegal aliens differently from citizens with respect to the right to keep and bear arms.\u00a0 The panel applied rational basis review\u2014rejecting Sitladeen\u2019s argument for heightened scrutiny\u2014and concluded that \u201cthere is a rational relationship between prohibiting unlawfully present aliens from possessing firearms and achieving the legitimate goal of public safety.\u201d\u00a0 Finally, the panel rejected various challenges to the sentence imposed by the district judge.<\/p>\n

The most notable aspects of\u00a0Sitladeen\u00a0<\/em>are its focus on status rather than conduct at\u00a0Bruen<\/em>\u00a0\u201cstep one,\u201d and its decision to follow pre-Bruen<\/em>\u00a0circuit precedent finding certain individuals outside the scope of the Second Amendment based on their status alone.
\nThe Fifth Circuit panel in\u00a0Rahimi<\/em>, by contrast, read\u00a0Bruen<\/em>\u00a0to endorse an expansive definition of \u201cthe people\u201d covered by the Second Amendment.
\nThat decision held that the reference to \u201claw-abiding, responsible citizens\u201d was \u201cshorthand\u201d covering only the presumptively-lawful regulations listed in\u00a0Heller<\/em>\u00a0(laws regulating \u201cgroups that have historically been stripped of their Second Amendment rights\u201d).\u00a0\u00a0Rahimi<\/em>\u00a0thus largely embraced the view espoused by then-Judge Amy Coney Barrett in her dissent in\u00a0Kanter v. Barr<\/em><\/a>: that the \u201cpolitical community\u201d comprising those with Second Amendment rights is broad, and \u201cthe question is whether the government has the power to disable the exercise of a right that they otherwise possess, rather than whether they possess the right at all.\u201d
\nSitladeen<\/em>, by contrast, holds that courts are still required to begin with a threshold textual analysis of \u201cthe people\u201d who possess Second Amendment rights, and that the category of those who do not possess such rights may be broader than those the Founders disarmed.<\/p>\n

The approach adopted in\u00a0Sitladeen<\/em>\u00a0has certain advantages.
\nFirst, it would be analytically awkward for\u00a0Bruen<\/em>\u00a0to set out a two-step test (almost every judge to apply the decision has divided it into two inquiries), but then require as the substantive element of\u00a0each<\/em>\u00a0step an examination into the\u00a0same<\/em>\u00a0historical evidence.
\nIt\u2019s hard to see what role the first step would play, and\u00a0Bruen\u00a0<\/em>clearly mandates some initial determination of whether \u201cthe Second Amendment\u2019s plain text covers an individual\u2019s conduct.\u201d
\nSecond, it\u2019s tough to square\u00a0Heller<\/em><\/a>\u2019s discussion of \u201cthe people\u201d as comprising \u201cthe political community\u201d with a history-only approach.\u00a0 For the proposition that \u201c\u2018the people\u2019 . . . refers to all members of the political community,\u201d\u00a0Heller<\/em>\u00a0cites to the Court\u2019s 1990\u00a0decision<\/a>\u00a0in\u00a0United States v. Verdugo-Urquidez<\/em>.
\nVerdugo-Urquidez\u00a0<\/em>dealt with the question of whether and how the Fourth Amendment applies to actions against aliens outside of the United States, and it required courts to assess whether an illegal alien has \u201csubstantial connections\u201d with the United States that give rise to Fourth Amendment rights.
\nAs described in\u00a0a 2011 law review article<\/a>, courts have taken different approaches when applying\u00a0Verdugo-Urquidez\u00a0<\/em>to Fourth Amendment claims by illegal immigrants.<\/p>\n

The larger point is that, in the Fourth Amendment context, courts often perform a detailed analysis of an illegal alien\u2019s\u00a0status<\/em>\u00a0(whether and how the individual entered the United States, and for how long) to determine whether the constitutional protection applies.
\nGiven\u00a0Heller<\/em>\u2019s reliance on\u00a0Verdugo-Urquidez<\/em>, it\u2019s difficult to read that opinion, and\u00a0Bruen<\/em>\u2019s affirmation of it, as prohibiting broader status-based exclusions (not<\/em>\u00a0directly rooted in historical tradition) in the Second Amendment context.
\nThis is especially true when one considers that alienage-based restrictions on firearm possession were\u00a0rare or nonexistent<\/a>\u00a0at the time of the Founding.
\nIf anything,\u00a0Verdugo-Urquidez<\/em>\u00a0suggests a default rule of exclusion for illegal aliens, coupled with an examination of whether the defendant\u2019s specific factual circumstances bring him or her inside the Second Amendment\u2019s scope.
\nPre-Bruen<\/em>\u00a0appellate decisions occasionally employed this very analysis, with the Seventh Circuit\u00a0holding<\/a>\u00a0in 2015 that an illegal immigrant was within \u201cthe people\u201d protected by the Second Amendment because he had lived in the country for over 20 years, developed family and social connections, and attended public schools.
\nIn\u00a0Meza-Rodriguez<\/em>, the panel ultimately held that \u201cCongress\u2019s interest in prohibiting persons who are difficult to track and who have an interest in eluding law enforcement is strong enough to support\u201d 922(g)(5)\u2019s constitutionality.<\/p>\n

Sitladeen\u00a0<\/em>is also notable in following pre-Bruen<\/em>\u00a0precedent (Flores<\/em>\u00a0and\u00a0Portillo-Munoz<\/em>) to decide the case at \u201cstep one.\u201d
\nAs Jake Charles\u00a0has written<\/a>, it is somewhat odd that\u00a0Rahimi<\/em>\u00a0failed to even mention the 2011 decision in\u00a0Portillo-Munoz<\/em>\u00a0(a prior precedential decision from the Fifth Circuit)\u2014even as the\u00a0Rahimi\u00a0<\/em>panel grounded its conclusions in the very case (Heller<\/em>) that\u00a0Portillo-Munoz<\/em>\u00a0purported to apply.
\nThis indicates a brewing circuit split about whether pre-Bruen<\/em>\u00a0cases are still good law to the extent they analyze the textual-historical scope of the Second Amendment.
\nRahimi<\/em>\u00a0squarely presents the issue, and it\u2019s one of the reasons I expect the Court to grant certiorari in that case.<\/p>\n

One other interesting aspect of\u00a0Sitladeen\u00a0<\/em>is that the district court relied in part on Sitladeen\u2019s prior firearms-related convictions, under\u00a0Canadian<\/em>\u00a0law, to depart upwards in sentencing (these included \u201cpossession of a prohibited or restricted firearm with ammunition, possession of a firearm contrary to a prohibition order, failure to comply with a probation order, carrying a concealed weapon, and assault causing bodily harm\u201d).\u00a0 As the panel opinion describes:<\/p>\n

Because Sitladeen\u2019s criminal record in Canada included \u201cerratic and violent behavior and multiple illegal firearms possession convictions,\u201d the court determined that the appropriate criminal history category was III, not I.<\/p>\n

The Eighth Circuit rejected Sitladeen\u2019s sentencing challenges, but it\u2019s interesting to consider more broadly the issue of judicial reliance on firearms-related convictions in countries with stricter gun regulation to impose a higher sentence on a criminal defendant prosecuted and convicted in the U.S. (a similar issue may arise when a judge in a state with little gun regulation, such as Montana, sentences a defendant with a prior firearms-related conviction in a state with much stricter gun laws, such as California).
\nPrior state-law convictions are generally counted when\u00a0calculating<\/a>\u00a0a defendant\u2019s criminal history category, and the sentencing guidelines\u00a0authorize<\/a>\u00a0upward departures based on \u201c[p]rior sentence(s) not used in computing the criminal history category,\u201d such as foreign or tribal convictions.
\nTo the extent these prior convictions simply illustrate a lack of respect for the law, one would imagine they should carry similar weight as other state- or foreign-law convictions.\u00a0 And some judges, such as a district judge in Maine in\u00a0a 2008 case<\/a>, have found that Canada\u2019s stricter gun laws support sentencing a defendant convicted of an offense involving illegal transportation of firearms into Canada with the base offense level set forth in \u00a72M5.2 (which \u201cassumes that the offense conduct was harmful or had the potential to be harmful to a security or foreign policy interest of the United States\u201d).
\nBut this is an area where judges have a great deal of discretion and may take different approaches, depending upon their own view of the \u201cwrongness\u201d of foreign criminal conduct and the propriety of stricter gun regulation generally.<\/p>\n","protected":false},"excerpt":{"rendered":"

Litigation Highlight: Eighth Circuit Rejects Challenge to Illegal-Alien Prohibition at Bruen Step One On April 4, the Eighth Circuit issued a published\u00a0decision\u00a0in\u00a0United States v. Sitladeen\u00a0rejecting a post-Bruen\u00a0challenge to the federal ban on \u201calien[s] . . .\u00a0 illegally or unlawfully in the United States\u201d possessing firearms.\u00a0 The decision employed a different \u201cstep one\u201d analysis than the … Continue reading “”<\/span><\/a><\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[23,8],"tags":[],"class_list":["post-91817","post","type-post","status-publish","format-standard","hentry","category-courts","category-rkba"],"_links":{"self":[{"href":"https:\/\/milesfortis.com\/index.php?rest_route=\/wp\/v2\/posts\/91817","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/milesfortis.com\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/milesfortis.com\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/milesfortis.com\/index.php?rest_route=\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/milesfortis.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=91817"}],"version-history":[{"count":1,"href":"https:\/\/milesfortis.com\/index.php?rest_route=\/wp\/v2\/posts\/91817\/revisions"}],"predecessor-version":[{"id":91818,"href":"https:\/\/milesfortis.com\/index.php?rest_route=\/wp\/v2\/posts\/91817\/revisions\/91818"}],"wp:attachment":[{"href":"https:\/\/milesfortis.com\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=91817"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/milesfortis.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=91817"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/milesfortis.com\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=91817"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}