EXCLUSIVE: Feds, defense in legal duel over whether undocumented immigrant has a Second Amendment right

An undocumented immigrant fires a gun on a Brooklyn sidewalk to frighten off gang rivals.
He gets arrested on a federal charge of being in the U.S. illegally and possessing a gun. But he claims he has a Second Amendment right that voids the charge.

Now for the clincher: The man, Javier Perez, just may have a case.
Perez, a Mexican national, has filed court papers saying that because the law forbids gun possession “in all places, and for all purposes, it violates that (Second Amendment) individual right on its face.”
Brooklyn federal prosecutors blast the argument. First off, they said, Perez doesn’t have a Second Amendment right because he’s here illegally. And even if he did have constitutional cover, prosecutors maintain the law has legitimate aims on “crime control and public safety.”
Perez, 28, popped shots into the air during a July 2016 altercation in Sunset Park, authorities have said. They added that the image of the gunman who was caught on a cell phone camera hoisting a .380-caliber semiautomatic pistol looked a lot like him.
When he was arrested in April 2017 on unrelated state charges, Perez allegedly admitted he was the shooter on the cell phone video. He allegedly said he borrowed the piece and fired it to scare off some members of a competing gang.
A record check with ICE showed Perez was in the country illegally, according to court papers.
The offense, being an undocumented immigrant in possession of a weapon, carries a 10-year maximum sentence. It also would lead to deportation proceedings.
Perez’s attorney, Samuel Jacobson, said he couldn’t find any ruling in New York’s federal appeals courts about the constitutionality of the charge. He noted federal appellate courts across the country are split on whether undocumented immigrants — by dint of not being American citizens — qualify for Second Amendment protection.
But prosecutors said Perez’s arguments don’t have firepower. Assistant U.S. Attorney Tanya Hajjar said three circuit courts already rejected arguments like the one Perez is using. Another two federal appeals courts said the statute has reasonable public safety goals.
Perez homed in on a 2008 Supreme Court case that blessed an individual’s gun rights and struck down a Washington handgun ban by a 5-4 vote.
That ruling said it was “preemptively lawful” to block guns for felons and mentally unstable individuals, but the Second Amendment didn’t have a similar sweeping “disqualification for undocumented immigrants,” Perez and his lawyer said.
Prosecutors said nothing in the ruling hinted at Second Amendment rights protecting people who aren’t law-abiding citizens.
The Supreme Court’s lack of dialogue on that point created the vacuum where Perez and the Brooklyn feds are the latest adversaries to haggle over the decision. Their fight is preceded by loads of litigation — including one decision now in the spotlight for other reasons.
District of Columbia lawmakers rewrote gun rules, and D.C. Circuit Judge Brett Kavanaugh, the current Supreme Court nominee, dissented against the overhaul and its ban on semiautomatic rifles and high-capacity ammunition magazines.
Kavanaugh wrote in 2011 that if he weren’t wearing his judicial robe, he “might well look favorably” on these kinds of rules.
“But our task is to apply the Constitution and the precedents of the Supreme Court, regardless of whether the result is one we agree with,” he said, on the losing side of a 2-1 vote.
Back in Brooklyn, Perez defied prosecutors to argue the charge against him was meant to curb violence. Studies showed undocumented immigrants didn’t commit crimes at rates higher than the general public, he noted.
Perez also said courts have already ruled three amendments bestow rights — to free speech, due process and protection against unreasonable searches and seizures — on noncitizens.
Hajjar countered the rule was on the books because Congress had a “strong interest” in blocking gun possession “by those who are difficult to track, with no permanent address and who may have an interest in evading law enforcement.”
Pratheepan Gulasekaram, a professor at Santa Clara University School of Law, said his sense was the feds didn’t bring the charge often, and when they did, it was typically thrown in with a number of other offenses.
Gulasekaram, who’s written on the Second Amendment and immigration matters, said a case like Perez’s managed to combine “two of the most volatile issues” in American courts and politics – which explained the handful of appellate rulings.
But there still hasn’t been any Supreme Court ruling addressing the Second Amendment rights of noncitizens, he noted.
The California professor had his own misgivings about the law Perez is targeting.
“The more one believes the Second Amendment is an individual right of self-defense, the harder it gets to say noncitizens are categorically not protected,” he said. “Any statute that makes firearms rights depend purely on immigrant status is constitutionally vulnerable,” Gulasekaram said.
The National Rifle Association did not respond to requests for comment.
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