Javier Perez, a Mexican national, was charged in New York for firing a pistol into the air to frighten rival gang members in 2016. According to local media, Perez -- an illegal alien -- is claiming in a Brooklyn federal court that he has a constitutional right to bear arms, just like American citizens. Perez’s lawyer argued in court, “The Framers were clear: if they meant citizens, they would have said citizens. But they didn’t.” The defense lawyer, Samuel Jacobson, argued, “There is no suggestion that there was a concept of ‘illegal alien’ and no suggestion that if you were from a foreign country, you couldn’t bear arms.”
In previous cases, federal courts have been divided over the wording of the Second Amendment and whether “the People” mentioned there refers to citizens and non-citizens. The courts have also questioned whether Congress has an “interest in keeping hands out of non-citizens.”
Perez faces a 10-year maximum sentence which could be followed by deportation orders, if he is convicted.
Federal prosecutors have argued that Perez cannot make a claim to Second Amendment rights, and that the case has been allowed to move forward. Perez entered the U.S. illegally.
Assistant U.S. Attorney Tanya Hajjar argued in court that illegal aliens often live outside the law.
"Those who don't have legal status here have an interest in defying law enforcement. They have an interest in not maintaining a stable residence or registering a firearm," she argued in court.
Perez’s attorney pins his hopes on a land mark 2008 Supreme Court decision that annulled a Washington handgun ban. In that decision, the high court ruled that it is “preemptively lawful” to prohibit firearms for felons and the mentally insane. In Perez’s defense, the lawyer noted that the Supreme Court decision did not mention illegal aliens. Prosecutors argue that the Supreme Court case did not address aliens who entered the country illegally.
While the Supreme Court upheld in District of Columbia v. Heller the right to bear arms, it recognized lawful limitations:
“Like most rights, the Second Amendment right is not unlimited. It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose: For example, concealed weapons prohibitions have been upheld under the Amendment or state analogues. The Court’s opinion should not be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms. Miller’s holding that the sorts of weapons protected are those “in common use at the time” finds support in the historical tradition of prohibiting the carrying of dangerous and unusual weapons.”