United States v. Jimenez-Shilon

• Decision Date: 23 May 2022
• Docket Number: 20-13139
• Citation: 34 F.4th 1042
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Ignacio JIMENEZ-SHILON, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

34 F.4th 1042

UNITED STATES of America, Plaintiff-Appellee,

v.Ignacio JIMENEZ-SHILON, Defendant-Appellant.

No. 20-13139

United States Court of Appeals, Eleventh Circuit.

Filed: May 23, 2022

Jennifer Waugh Corinis, Greenberg Traurig, PA, TAMPA, FL, Holly Lynn Gershow, Peter J. Sholl, Sean Siekkinen, Assistant U.S. Attorney, Michelle Thresher Taylor, U.S. Attorney's Office, TAMPA, FL, for Plaintiff - Appellee.

Adeel Bashir, Samuel Landes, Federal Public Defender's Office, TAMPA, FL, for Defendant - Appellant.

Before Newsom, Branch, and Brasher, Circuit Judges.

Newsom, Circuit Judge, delivered the opinion of the Court.

Newsom, Circuit Judge, filed a concurring opinion.

Newsom, Circuit Judge:

This case requires us to decide whether a federal law that prohibits illegal aliens from possessing firearms violates the Second Amendment to the United States Constitution, which guarantees "the right of the people to keep and bear Arms." U.S. Const. amend. II. We hold that it does not.

I

Ignacio Jimenez-Shilon, an illegal alien from Mexico, lived in the United States for more than 20 years before his recent deportation. One afternoon in 2019, he drunkenly brandished a gun outside a taco stand in Tampa, Florida. He was arrested, and a grand jury charged him with one count of possession of a firearm by an illegal alien, in violation of 18 U.S.C. § 922(g)(5)(A).

Although Jimenez never disputed his guilt, he moved to dismiss the indictment on the ground that a conviction would impermissibly punish him for engaging in conduct protected by the Second Amendment. Jimenez also sought an evidentiary hearing to establish his connections with the United States. The district court denied Jimenez's motion to dismiss and later denied his motion for reconsideration.

The case proceeded to a stipulated bench trial, where the district court found Jimenez guilty based on the undisputed facts. Acknowledging that Jimenez had served more than a year in prison on pretrial detention, the court imposed a sentence of a year and a day, followed by three years of supervised release. Jimenez appealed. Our review of his constitutional claim—that § 922(g)(5)(A) violates the Second Amendment—is de novo. United States v. Bolatete , 977 F.3d 1022, 1032 (11th Cir. 2020).

II

The Second Amendment provides: "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." U.S. Const. amend. II. In District of Columbia v. Heller , the Supreme Court held "that the Second Amendment confer[s] an individual"—as opposed to a collective—"right to keep and bear arms." 554 U.S. 570, 595, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008) ; see also McDonald v. City of Chicago , 561 U.S. 742, 767–68, 130 S.Ct. 3020, 177 L.Ed.2d 894 (2010). Jimenez's argument to us is straightforward: (1) Even as an illegal alien, he lived in the United States for decades and was thus among "the people" whom the Second Amendment protects; and (2) as a consequence, he couldn't be punished for exercising his individual right to possess a firearm.

But the inquiry isn't as mechanical as Jimenez suggests. As we will explain, being a member of "the people" to whom the Second Amendment applies as a general matter is a necessary condition to enjoyment of the right to keep and bear arms, but it is not alone sufficient . The reason is that the Second Amendment's text shows that it codified what the Heller Court called a "pre-existing right," 554 U.S. at 592, 603, 128 S.Ct. 2783 —the right "to keep and bear Arms"—and that right's particular history demonstrates that it extended (and thus extends) to some categories of individuals, but not others. Accordingly, as the Supreme Court put it in Heller , certain groups of people—even those who might be among "the people"—may be "disqualified from" possessing arms without violating the Second Amendment. Id. at 635, 128 S.Ct. 2783 ; accord United States v. Rozier , 598 F.3d 768, 770–71 (11th Cir. 2010) (per curiam). Based on our "examination of a variety of legal and other sources" from the Founding era, Heller , 554 U.S. at 605, 128 S.Ct. 2783, we hold that illegal aliens are one such group.

A

We begin with the threshold question presented by Jimenez's appeal: Who are "the people" mentioned in the Second Amendment? In Heller , the Supreme Court explained that phrase by reference to its earlier decision in United States v. Verdugo-Urquidez , 494 U.S. 259, 110 S.Ct. 1056, 108 L.Ed.2d 222 (1990), which had considered the meaning of the Fourth Amendment's protection of "the people" against unreasonable searches and seizures. In that case, Verdugo, a Mexican citizen, was apprehended by Mexican officials and taken to a California prison. Id. at 262, 110 S.Ct. 1056. While he was there, federal DEA agents conducted a warrantless search of his home in Mexico. Id. at 262–63, 110 S.Ct. 1056. Verdugo sought to exclude the fruits of that search on the ground that he was among "the people" protected by the Fourth Amendment. The Supreme Court rejected Verdugo's argument because, "[a]t the time of the search, he was a citizen and resident of Mexico with no voluntary attachment to the United States." Id. at 274–75, 110 S.Ct. 1056.

In the course of its decision, the Court explained that " ‘the people’ seems to have been a term of art employed in select parts of the Constitution." Id. at 265, 110 S.Ct. 1056. Then, after canvassing several constitutional provisions, the Court interpreted the phrase as encompassing two groups:

"[T]he people" protected by the Fourth Amendment, and by the First and Second Amendments, and to whom rights and powers are reserved in the Ninth and Tenth Amendments, refers to a class of persons [1] who are part of a national community or [2] who have otherwise developed sufficient connection with this country to be considered part of that community.

Id. ; see also Heller , 554 U.S. at 580, 128 S.Ct. 2783 (quoting this passage).

That "national community"-focused definition of "the people" finds support in Founding-era dictionaries. See Noah Webster, American Dictionary of the English Language 600 (1st ed. 1828) ("The body of persons who compose a community, town, city, or nation."); 2 Samuel Johnson, A Dictionary of the English Language 305 (6th ed. 1785) ("A nation; those who compose a community."). And we don't see any textual, contextual, or historical reason to think that the Framers understood the meaning of the phrase to vary from one provision of the Bill of Rights to another. See United States v. Emerson , 270 F.3d 203, 227–28 (5th Cir. 2001) ; cf. IBP, Inc. v. Alvarez , 546 U.S. 21, 34, 126 S.Ct. 514, 163 L.Ed.2d 288 (2005) (explaining the cardinal rule of interpretation "that identical words used in different parts of the same statute are generally presumed to have the same meaning"). The Constitution's text shows that when the Framers meant to limit a provision's application to "Citizen[s]" per se , they did so expressly. See U.S. Const. art. I, § 2, cl. 2 (right to hold office in the House of Representatives); id. art. I, § 3, cl. 3 (same in Senate); id. art. II, § 1, cl. 5 (same for Presidency); id. art. IV, § 2, cl. 1 (Privileges and Immunities Clause). Likewise, when they meant to extend a provision's reach more broadly to encompass all "person[s]" in the United States, they did so expressly. See U.S. Const. amend. V ; Plyler v. Doe , 457 U.S. 202, 210, 102 S.Ct. 2382, 72 L.Ed.2d 786 (1982). It appears, then, at least as a general matter, that the phrase "the people" sits somewhere in between—it has "broader content than ‘citizens,’ and ... narrower content than ‘persons.’ " United States v. Huitron-Guizar , 678 F.3d 1164, 1168 (10th Cir. 2012) ; see also 1 William Blackstone, Commentaries on the Laws of England *366 (1765) (considering "such persons as fall under the denomination of the people " to include "aliens and natural-born subjects," but observing, importantly, that the two groups held different sets of rights); 4 Jonathan Elliot, The Debates in the Several State Conventions on the Adoption of the Federal Constitution 556 (2d ed. 1836) (statement of James Madison suggesting that at least some "aliens" are entitled to the "protection and advantage" of the Constitution).

But that doesn't settle the matter. It's not self-evident where illegal aliens fit within Verdugo-Urquidez ’s two-part construct. On the one hand, it seems clear enough that they are not inherently "part of [the] national community" within the meaning of the first half of that decision's disjunctive test. 494 U.S. at 265, 110 S.Ct. 1056. But on the other hand, we can't rule out the possibility that at least some illegal aliens might, during their stays here, "have otherwise developed sufficient connection with this country to be considered part of that community," within the meaning of the second half. Id. ; see also, e.g. , United States v. Meza-Rodriguez , 798 F.3d 664, 672 (7th Cir. 2015) (concluding that illegal aliens can be among "the people" for Second Amendment purposes); Martinez-Aguero v. Gonzalez , 459 F.3d 618, 625 (5th Cir. 2006) (same, for Fourth Amendment purposes). So, what about Jimenez? Are his two decades of residence in Florida enough? What about the fact that he has consistently paid his taxes? Or that his employment has contributed to our economy? Or that he has a U.S.-born child? Does it matter that he isn't living with that child? Or that he hasn't filed a formal tax return?

Happily, we needn't definitively decide whether Jimenez is among "the people" as a general matter. We can assume for the sake of our decision that he is and resolve this case more narrowly. The reason: We are concerned here specifically with the scope and application of the Second Amendment, which, as already explained, codified a "pre-existing right."

Heller , 554 U.S. at 592, 603, 128 S.Ct. 2783. And as both the Supreme Court and this Court have observed, even individuals who are indisputably part of "the...