Second Amendment / Equal Protection Clause Victory for Legal Alien Gun Owners

A pre-2009 Washington state law, under which Yasin Ibrahim was convicted, required aliens to get a license . (A new statute sets up a different licensing scheme for alien gun owners, but that statute wasn’t involved in this case.) Ibrahim was prosecuted under the old law, for having an unlicensed gun. Today’s State v. Ibrahim (Wash. Ct. App.) holds that the old law violated the Equal Protection Clause by unconstitutionally discriminating against noncitizens. And in the process the court says that the law did this “by denying [legal aliens’] Second Amendment right to keep and bear arms.”

This independent focus on the Second Amendment is important because the Supreme Court has read the Equal Protection Clause as barring most (but not all) state discrimination against noncitizens; the federal government remains generally free to discriminate against noncitizens. But if the Washington Court of Appeals is right that legal aliens are protected by the Second Amendment, that means that even the federal government may not ban them from owning guns.

Current federal law lets immigrant aliens possess guns, but bars gun possession by legal aliens who don’t have immigrant status. (See 18 U.S.C. § 922(g)(5)(B).) This category of people generally barred from possessing guns (with some exceptions for hunting and sporting purposes) includes not just tourists but also long-term residents, such as students or people working here on nonimmigrant visas. So if federal courts follow the Washington Court of Appeals’ view of the matter, that prohibition might be vulnerable on Second Amendment grounds.

Two notes: (1) As it happens, the state Department of Licensing refused to issue alien gun licenses under the pre-2009 law, but that wasn’t expressly discussed in the opinion. (2) The opinion talked about the pre-2009 law as requiring “registration” of a gun, but as I read it the law actually required a license.