United States v. Carpio–Leon

• Decision Date: 14 December 2012
• Docket Number: No. 11–5063.,11–5063.
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Nicolas CARPIO–LEON, Defendant–Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

701 F.3d 974

UNITED STATES of America, Plaintiff–Appellee,

v.Nicolas CARPIO–LEON, Defendant–Appellant.

No. 11–5063.

United States Court of Appeals,Fourth Circuit.

Argued: Sept. 21, 2012.

Decided: Dec. 14, 2012.

ARGUED:Douglas Neal Truslow, Columbia, South Carolina, for Appellant. Robert Frank Daley, Jr., Office of the United States Attorney, Columbia, South Carolina, for Appellee. ON BRIEF:William N. Nettles, United States Attorney, J.D. Rowell, Assistant United States Attorney, Office of the United States Attorney, Columbia, South Carolina, for Appellee.

Before TRAXLER, Chief Judge, and NIEMEYER and MOTZ, Circuit Judges.

Affirmed by published opinion. Judge NIEMEYER wrote the opinion, in which Chief Judge TRAXLER and Judge MOTZ joined.

OPINION

NIEMEYER, Circuit Judge:

After Nicolas Carpio–Leon, a citizen of Mexico, was indicted for possessing firearms while being “illegally or unlawfully in the United States,” in violation of 18 U.S.C. § 922(g)(5), he filed a motion to dismiss the charge, contending that § 922(g)(5) violated his rights under the Second and Fifth Amendments to the United States Constitution. The district court denied Carpio–Leon's motion, and Carpio–Leon then pleaded guilty to that charge, as well as to an illegal entry charge, reserving, as part of his plea agreement, the right to appeal the district court's conclusion that § 922(g)(5) is constitutional.

Concluding that § 922(g)(5) is constitutional, we affirm. On Carpio–Leon's Second Amendment challenge, we conclude that the scope of the Second Amendment does not extend to provide protection to illegal aliens, because illegal aliens are not law-abiding members of the political community and aliens who have entered the United States unlawfully have no more rights under the Second Amendment than do aliens outside of the United States seeking admittance. On Carpio–Leon's Fifth Amendment challenge, we conclude that prohibiting illegal aliens, as a class, from possessing firearms is rationally related to Congress' legitimate interest in public safety.

I

Following a consensual search of Carpio–Leon's home on February 24, 2011, in Orangeburg, South Carolina, Immigration and Customs Enforcement agents recovered a .22 caliber Marlin rifle, a 9 mm Hi–Point model C pistol, and ammunition. Carpio–Leon admitted that he had stored the firearms in his master bedroom and that he was in the United States illegally. He was thereafter indicted in two counts charging him with (1) possession of a firearm by an alien “illegally or unlawfully in the United States,” in violation of 18 U.S.C. § 922(g)(5)(A); and (2) illegal entry into the United States, in violation of 8 U.S.C. § 1325(a)(2).

Carpio–Leon filed a motion to dismiss Count I on the ground that § 922(g)(5) violates his rights under the Second Amendment and the Due Process Clause of the Fifth Amendment. At the hearing on the motion, he introduced evidence that he and his wife had lived in Orangeburg for some 13 years and had three children, all of whom were born in the United States; that he had no prior criminal record; that he had filed income tax returns; and that “a .22 caliber and a 9 mm pistol could be the type of arms one would use for protection of their homes and children.” He also stipulated that he was in the United States illegally and that he had used a false social security number to obtain a driver's license.

The district court denied Carpio–Leon's motion, concluding that “Heller [554 U.S. 570, 128 S.Ct. 2783 (2008) ] and other Supreme Court precedent foreclose [his] argument that aliens illegally present in the United States are among those protected by the Second Amendment.” Alternatively, the court ruled that § 922(g)(5) survives intermediate scrutiny, the relevant standard, because “[g]iven Congress's legitimate concerns about the dangers potentially posed by individuals who have violated this country's immigration laws and either entered or remain present inside its borders illegally, § 922(g)(5)(A) reasonably addresses the governmental objective of keeping firearms out of the possession of illegal aliens.” The court rejected Carpio–Leon's Fifth Amendment claim because it found, for the same reasons given in its analysis of his Second Amendment claim, that § 922(g)(5) does not deprive Carpio–Leon of any fundamental constitutional right.

After the court denied his motion to dismiss, Carpio–Leon entered a conditional guilty plea to both counts of the indictment, reserving the right to appeal the issue of § 922(g)(5)'s constitutionality. The court sentenced Carpio–Leon on October 25, 2011, to time served on Count I and to six months' imprisonment on Count II, with both sentences to run concurrently. It ordered two years' supervised release on Count I and, as additional conditions, directed Carpio–Leon (1) “to surrender to a duly-authorized immigration official for deportation consideration in accordance with established procedures provided by the Immigration and Naturalization Act, 8 U.S.C. § 1101 et seq.” and (2) “not [to] re-enter the United States for the duration of supervised release and not without the approval of the United States Attorney General or the Secretary of Homeland Security.”

This appeal followed.

II

Carpio–Leon contends that possession of firearms typically used for self-defense in one's home is protected by the Second Amendment, even when such possession is by an illegal alien. Recognizing the historical analysis required in construing the Second Amendment, he argues that the Second Amendment could not have been intended to exclude illegal aliens from its scope because “in 1791, attitudes toward immigration were the reverse of today's attitudes” and “immigrants—also known as ‘settlers'—were deemed absolutely necessary to the development and survival of the new nation.” Carpio–Leon also argues that “there is no empirical evidence demonstrating that undocumented workers (in their homes)[,] the classification into which [he] falls[,] are any more dangerous to society than legal aliens or, for that matter, native born United States citizens.” Thus, he asserts, § 922(g)(5) is not narrowly tailored “to serve a compelling government interest.”

The government contends that the Second Amendment does not protect illegal aliens because it “codified a preexisting right [to bear arms] that historically has been enjoyed [only] by law-abiding, responsible citizens, and illegal aliens are necessarily not law abiding.” In any event, it argues that § 922(g)(5) survives intermediate scrutiny by serving an important interest in public safety. It also notes that Congress has “broad power over immigration-related matters and can choose to disarm illegal aliens.”

We have not had occasion to address a Second Amendment challenge to 18 U.S.C. § 922(g)(5). The Fifth, Eighth, and Tenth Circuits, however, have upheld the provision in the face of a Second Amendment challenge, and we have found no court of appeals decision that has found it unconstitutional. The Fifth Circuit and the Eighth Circuit held that the protection of the Second Amendment does not extend to illegal aliens. See United States v. Portillo–Munoz, 643 F.3d 437, 442 (5th Cir.2011), cert. denied,––– U.S. ––––, 132 S.Ct. 1969, 182 L.Ed.2d 821 (2012); United States v. Flores, 663 F.3d 1022, 1023 (8th Cir.2011) (per curiam), cert. denied,––– U.S. ––––, 133 S.Ct. 28, 183 L.Ed.2d 681 (2012). And the Tenth Circuit avoided the question of whether illegal aliens are protected by the Second Amendment and upheld § 922(g)(5) because it passed intermediate scrutiny. See United States v. Huitron–Guizar, 678 F.3d 1164, 1169–70 (10th Cir.2012).

As we have previously observed, “[a]ny Second Amendment analysis must now begin with the Supreme Court's recent seminal decision in Heller, which held that the Second Amendment [providing that ‘the right of the people to keep and bear Arms, shall not be infringed’] codified a ‘ preexisting’ right that allows individuals to keep and bear arms.” United States v. Carter, 669 F.3d 411, 414 (4th Cir.2012) (citing District of Columbia v. Heller, 554 U.S. 570, 592, 595, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008)). In Heller, the Court, finding that the Second Amendment protects an individual right to bear arms, struck down the District of Columbia's bans on handgun possession in the home and on having a firearm in the home that is immediately operable. Heller, 554 U.S. at 635, 128 S.Ct. 2783. But in doing so, the Court cautioned that the right to bear arms has limits. “Of course the right [to bear arms] [is] not unlimited, just as the First Amendment's right of free speech [is] not.” Id. at 595, 128 S.Ct. 2783.

Thus, the Second Amendment does not guarantee the right to possess for every purpose, to possess every type of weapon, to possess at every place, or to possess by every person. See United States v. Chester, 628 F.3d 673, 676 (4th Cir.2010) (“Significantly, Heller recognized that the right to keep and bear arms, like other Constitutional rights, is limited in scope and subject to some regulation”); Carter, 669 F.3d at 415 (explaining that under Heller, “the right to keep and bear arms depends not only on the purpose for which it is exercised but also on the relevant characteristics of the person invoking the right”); Huitron–Guizar, 678 F.3d at 1166 (“The right to bear arms, however venerable, is qualified by what one might call the ‘who,’ ‘what,’ ‘where,’ ‘when,’ and ‘why’ ”). As the Heller Court itself enumerated the limitations, the Constitution does not “protect the right of citizens to carry arms for any sort of confrontation,” 554 U.S. at 595, 128 S.Ct. 2783; the right to bear “arms” does not guarantee the right to possess every type of weapon, id. at 627, 128 S.Ct. 2783; and not every person has the right to possess a firearm—“[N]othing in our opinion should be taken to cast doubt on long-standing prohibitions on the possession of firearms by felons and the mentally ill,” id. at 626–27,...