Examining the Fight Over 2A Rights for Illegal Immigrants

This week, we saw two federal appellate courts weigh in on the Second Amendment rights of people in the country unlawfully. The opinions covered a variety of positions on the question.

Of course, they aren't the first courts to address the issue, and it's only become a more common challenge in the wake of 2022's New York State Rifle and Pistol Association v. Bruen. So, to dissect the state of the legal debate, we have Seattle University of Law professor Alan Mygatt-Tauber on the show. He has a law review article set to publish early next year that examines the state of the fight over undocumented immigrants and guns, as well as weighing in on the different arguments.

Mygatt-Tauber said he's read every Second Amendment challenge to the illegal immigrant gun ban since Bruen was handed down. He said the most common outcome was a court holding that undocumented immigrants are part of "the people" protected by the Second Amendment, but upholding the gun ban as consistent with America's tradition of gun regulation. Then there were courts that determined they aren't protected by the Second Amendment at all. Finally, the least common holding was that they are protected, and the law is unconstitutional.

He noted that the Sixth and Tenth Circuit holdings were both in the first category, but one included a notable, lengthy dissent explaining why all non-citizens don't enjoy Second, First, or Fourth Amendment rights. He noted that, even though he belives its the most accurate position, no court has yet held illegal immigrants are entitled to Second Amendment rights and the law barring them from possessing guns is unconstitutional.

Special Guest: Alan Mygatt-Tauber.