Two judges, Susan L. Carney and John M. Walker, Jr., said in the majority opinion that they were not deciding whether the Second Amendment protects immigrants living in the country illegally like Perez. Even if it did, the judges wrote, the law survives constitutional scrutiny because it protects an important government interest: ensuring public safety.
The opinion, penned by Judge Walker, relied heavily on the Heller decision. The judges set aside the question of whether Heller meant that the Second Amendment applied only to citizens, instead focusing on the concept of law-abiding. Because he was in the country illegally, Perez had shown disregard for the law, so he could be excluded from the protections of the Second Amendment, the judges said.
“Perez also does not qualify as a ‘law-abiding, responsible citizen’ because, however he may choose to live his life in the United States, his presence here is unlawful,” the opinion says.
Gulasekaram said the majority opinion erroneously conflated whether a person is law-abiding with their immigration status. Doing that, the Second Circuit is essentially placing him on the same level as felons, including violent ones, who have been traditionally restricted from possessing firearms. Despite being in the country illegally, Perez had not been convicted of any crime, including immigration crimes, at the time he fired the gun. Being unlawfully present in the United States is not a crime, but an administrative violation.
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