- The Washington Times
Monday, January 3, 2022

Felix Alva took to the streets of Denver in the wake of George Floyd’s death in 2020.

He cruised downtown, jeering at police. He became drunk and challenged officers to fights, at one point telling an undercover police officer that “this ain’t no peaceful protest.” He waved a pistol at bystanders and at one point, according to investigators, fired eight shots into the air at a police helicopter circling overhead.

His big mistake, however, was holding that gun while being an illegal immigrant.

Out of all the mayhem in which authorities said Alva was involved, he ended up being convicted of a single crime: being in the country illegally while in possession of a firearm.

Even as the Biden administration moves toward leniency toward illegal immigrants on so many fronts, there is a line the government hasn’t crossed: Possessing a firearm is still a serious offense.

But the Second Amendment guarantees the right to bear arms to “the people,” and a series of cases is testing whether that term also includes illegal immigrants.

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One of those cases is now before the Supreme Court, with attorneys for Javier Perez, an illegal immigrant who used a gun to disperse a gang of teens attacking another teen, asking the justices to take up the matter and settle the question.

A federal judge found Perez guilty and slapped a 20-month sentence for the gun crime. The 2nd U.S. Circuit Court of Appeals agreed with that ruling, though the three-judge panel differed sharply on whether Perez had Second Amendment rights.

Two judges said he did — but ruled that the state had a valid reason to restrict those rights.

The third judge disagreed, saying illegal immigrants are not covered under the Second Amendment’s guarantee of “the right of the people to keep and bear arms.” The judge said illegal immigrants aren’t included in that reading of “the people.”

Perez‘s attorneys say it is generally accepted that illegal immigrants have those rights in other places of the Constitution where “the people” is used.

That’s particularly true for gun rights, the lawyers said.

“Text, history, precedent and logic confirm that aliens with long-standing ties to this country possess the same inherent right to defend themselves that citizens possess,” the lawyers argued to the justices.

The justices have yet to decide whether to hear the case.

People or citizens?

Some rights in the criminal context are clearly held by unauthorized migrants just as much as citizens. Those include the right to a jury trial and the right against self-incrimination, said Pratheepan Gulasekaram, a law professor at Santa Clara University.

“Once you get beyond the application of the Bill of Rights in those criminal protections, you start to get into grayer areas of the application of the Bill of Rights and the Constitution more generally,” he told The Washington Times.

But Mr. Gulasekaram said that the way gun rights case law has developed at the Supreme Court, with the justices finding it to be a personal right for protection rather than a collective right essential to self-governance, it’s tough to see why illegal immigrants should be treated differently.

“If defense, or self-defense, is the operative principle, then it’s not clear why migration status has anything to do with who needs defense and who doesn’t need self-defense,” he said.

Laws at the federal level and in many states don’t see it that way.

Under a national statute, illegal immigrants and temporary visitors, such as those with student visas, are prohibited unless they meet certain exceptions, such as holding a valid hunting license.

Alan Gottlieb, founder of the Second Amendment Foundation, draws the line between legal and illegal immigrants.

His organization has successfully challenged state laws limiting legal residents and legal temporary visa holders on their ability to possess firearms. The foundation won a ruling against a concealed-carry law in New Mexico that barred a legal permanent resident from applying for a permit.

But Mr. Gottlieb said his organization does not want to see illegal immigrants granted gun rights.

“That’s where the law generally is, and we have no problem with that,” he said. “We don’t think illegal aliens should get the same rights and privileges that people who are here legally or who are citizens should get.”

He said the battle for legal immigrants’ gun rights is also a stand for U.S. citizens. If the foundation can show that immigrants have Second Amendment rights, then it “reinforces those rights for citizens.”

Being in the country illegally is one of a dozen categories that trigger rejection in the FBI’s federal instant background check system. Other reasons include a felony record, a misdemeanor domestic violence conviction, mental health problems or a dishonorable discharge from the military.

From 1998 through the end of November, nearly 40,000 illegal immigrants were blocked from purchasing guns thanks to the background check. By comparison, more than 1 million felons have been blocked.

The background check system lists nearly 8.5 million names in its illegal immigrant file. The FBI says those names are chiefly taken from Homeland Security Department databases.

Immigrant rights advocates worry about the implications of a Supreme Court decision that concludes the Second Amendment’s reference to “the people” doesn’t include illegal immigrants.

In a key precedent, the 2008 Heller decision, Justice Antonin Scalia wrote that the right was held by “law-abiding, responsible citizens.”

In Perez‘s case, now before the justices, the two sides disagree over whether Scalia used those words intentionally, potentially excluding law-breaking noncitizens from the right.

The 2nd Circuit said Scalia did intend to freight the word “citizens” with constitutional meaning; Perez‘s attorneys say differently.

The Biden administration, in a brief filed with the high court last week, said illegal immigrants are less likely to comply with identification and record-keeping rules surrounding guns and have a built-in propensity to “misuse firearms against immigration authorities attempting to apprehend them.”

Solicitor General Elizabeth B. Prelogar urged the justices not to hear the case. She said there is no real dispute among lower courts over the issue.

Easy to prove

Perez possessed the gun for only a brief time.

According to court records, he was at a barbecue with friends in Brooklyn on July 23, 2016, when he saw a group of men attacking a gang rival with bats and machetes. Perez borrowed a friend’s gun and fired several shots into the air, sending the youths fleeing. He then handed the gun back to his friend.

Perez sneaked into the U.S. from Mexico as a 13-year-old. He became involved with a street gang in his teens but insisted those days were long behind him at the time of the incident.

Authorities matched shell casings from the shooting to those from another one months later. They tied the original shooting to Perez after arresting him on a separate offense in 2017.

Perez has pleaded guilty to the federal crime of possessing the firearm as an illegal immigrant but reserved his right to appeal based on his Second Amendment claim.

In the case of Alva, the illegal immigrant who carried a gun to the Denver chaos in June 2020, court documents don’t reveal how he acquired the weapon.

The main point of disagreement between prosecutors and the defense was whether Alva was trying to hit a police helicopter or whether that was incidental to his reckless firing.

Prosecutors in the case sought an eight-year sentence. Alva argued for 10 months — essentially time served. The judge leaned toward the lower end with a two-year sentence.

Alva said in court papers that he expects to be deported again after serving his time.

Mr. Gulasekaram said there is a reason prosecutors often end up with just the immigrant gun charge: It’s easy to prove. All it takes is the weapon and a quick call to Homeland Security to verify that someone isn’t in the country legally.

That appears to be the case with a prosecution against Jaap Willem Lijbers, from the Netherlands, who overstayed his visa to become an illegal immigrant and was affiliated with the anti-government network Bugaloo Bois.

Prosecutors said he pushed fellow adherents to storm government buildings and called for a “pig roast” attack on police. But he was indicted only on the gun charge.

In August, a federal judge agreed with Lijbers’ request to be sentenced to time served — about five months — and ordered he be turned over to Homeland Security for deportation.

• Stephen Dinan can be reached at sdinan@washingtontimes.com.

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