Dangerousness & the Undocumented

The Supreme Court’s most recent Second Amendment opinion,United States v. Rahimi, centers the question of dangerousness in right to bear arms challenges. There, the Court upheld 18 U.S.C. § 922(g)(8), the federal criminal prohibition on possession of firearms by those subject to a civil domestic violence order, opining that legislatures could regulate the right to bear arms of those who were proven credible threats to public safety.Rahimi, however, left open the question whether dangerousness might be imputed to an entire group, absent individual determinations of threat or danger. The several lower federal court cases adjudicating 18 U.S.C. § 922(g)(5), thefederal criminal prohibition on possession of firearms by unlawfully present noncitizens, place this concern in sharp relief. Many federal judges have imputed dangerousness to that population in upholding the federal alien-in-possession ban. Some have suggested that violation of immigration law indicates a general propensity for lawlessness, while others obliquely reference public safety threats by noncitizens to buttress their conclusions.

This Article argues that if federal courts take the Supreme Court’s prescribed methodology inRahimiandNew York Rifle & Pistol Ass’n, Inc. v. Bruenseriously, they must require legislatures to substantiate the link between immigration status and public threat. All available criminological data, however, fails to validate such a connection. Permitting courts to continue upholding federal and state restrictions on noncitizen firearm possession based on innuendo and stereotype reinvigorates the xenophobia of long-discarded judicial thinking, excises noncitizens from fundamental constitutional guarantees without justification, and undermines the coherence of the Court’s emerging Second Amendment jurisprudence.