Second Amendment Implications for Unlawfully Present Aliens

I. Introduction

Illegal immigration and gun control have remained amongst the ranks of the most politically divisive issues over the last few decades, and in 2023, the Eighth Circuit was presented with a case that combined both issues. In April 2023, the U.S. Court of Appeals for the Eighth Circuit decided United States v. Sitladeen, which effectively held that unlawfully present aliens in the United States are not part of “the people” to whom the Second Amendment confers the right to bear and keep arms.^[1] The Eighth Circuit’s decision in Sitladeen highlights a circuit split among the courts of appeals, with several circuits holding that “the people” the Second Amendment seeks to protect can include, to some degree, unlawfully present aliens.^[2] In contrast, the Fifth and Eighth Circuits have held that the Second Amendment does not bestow Second Amendment rights to unlawfully present aliens because unlawfully present aliens are not included within “the people.”^[3]

In this Comment, Part II begins by discussing the Eighth Circuit’s Sitladeen opinion and the relevant cases from various circuits and the Supreme Court regarding who is included in “the people.” Part III will analyze the various tests for Second Amendment challenges and how the Eighth Circuit could have ruled differently in deciding who is included in "the people’’ in the Second Amendment. Although the Eighth Circuit could have more thoroughly analyzed the “scope of the right” test, it likely made a correct legal decision in affirming Sitladeen’s conviction by following binding precedent and the first component of the “scope of the right” test. Part IV delves into policy arguments and the potential political implications of the circuit split and the Sitladeen decision, including the potential effects of allowing unlawfully present aliens to enjoy Second Amendment rights. The Eighth Circuit, at least in part, rightfully affirmed Sitladeen’s conviction because of his violent criminal history and possession of sixty-seven firearms, which were clearly possessed for purposes other than self-defense. Part V concludes by restating the different approaches the Eighth Circuit could have taken in addressing Sitladeen’s Second Amendment challenge to 18 U.S.C. § 922(g)(5)(A). Despite the Eighth Circuit’s potentially flawed reasoning, the Eighth Circuit likely correctly decided Sitladeen from both legal and policy standpoints, but its reasoning could have been stronger by fully following the “scope of the right” test.

II. The Circuit Split: United States v. Sitladeen

This part details the court case United States v. Sitladeen, where the U.S. Court of Appeals for the Eighth Circuit affirmed Dayne Sitladeen’s firearm conviction under 18 U.S.C. § 922(g)(5)(A), holding that “the people” referred to in the Second Amendment does not include unlawfully present aliens, and that 18 U.S.C. § 922(g)(5)(A) thus remains constitutional.^[4] Specifically, Section A will describe the facts of Sitladeen’s case and how he ended up in the Eighth Circuit, and Section B will describe the Eighth Circuit’s reasoning in affirming Sitladeen’s conviction.

A. Dayne Sitladeen’s Journey to the Eighth Circuit

In January 2021, Dayne Sitladeen and Muzamil Addow were traveling down a Minnesota highway at a speed of nearly one hundred miles per hour.^[5] A Minnesota state trooper pulled over the two men for speeding, and upon searching the vehicle, the state trooper discovered just under seventy firearms and “over a dozen high-capacity pistol magazines.”^[6] Sitladeen and Addow were subsequently arrested, and the officers then realized that the two were carrying false identification.^[7] After this realization, the officers then uncovered that Sitladeen and Addow were Canadian citizens unlawfully present in the United States, and that Sitladeen had an arrest warrant in Canada for murder and Fentanyl trafficking.^[8]

Sitladeen and Addow were indicted for firearm possession by an alien unlawfully present in the United States under 18 U.S.C. § 922(g)(5)(A).^[9] Sitladeen moved to dismiss his indictment on the grounds that “§ 922(5)(A) violates both the Second Amendment’s right to keep and bear arms and the Fifth Amendment’s guarantee of equal protection.”^[10] The Second Amendment directly states: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”^[11] Under 18 U.S.C. § 922(g)(5)(A), it is unlawful for a person who is illegally in the United States “to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.”^[12]

The district court denied Sitladeen’s motion, citing the Eighth Circuit’s decision in United States v. Flores, which held that the Second Amendment does not provide the right to bear arms to unlawfully present aliens in the United States.^[13] Somewhat surprisingly, the district court sentenced Sitladeen to seventy-eight months in prison, rather than the recommended fifty-seven to seventy-one months based on his category III criminal history.^[14] Sitladeen then appealed to the U.S. Court of Appeals for the Eighth Circuit, which ultimately affirmed Sitladeen’s indictment and sentencing.^[15]

B. The Eighth Circuit’s Second Amendment Analysis

The Eighth Circuit began its analysis of Sitladeen’s contention that 18 U.S.C. § 922(g)(5)(A) is unconstitutional by essentially diving right into United States v. Flores, where the court states that Sitladeen’s argument is the exact same as Flores’s was: that unlawfully present aliens in the United States are included in “the people” of the Second Amendment, and that 18 U.S.C. § 922(g)(5)(A) is thus unconstitutional.^[16]

The Eighth Circuit in Flores had held that illegally present aliens in the United States do not enjoy Second Amendment protection.^[17] Although the Flores opinion consists of only four sentences, the Flores court cites United States v. Portillo-Munoz, where an unlawfully present alien argued that 18 U.S.C. § 922(g)(5)(A) is unconstitutional because it violates the Second Amendment, specifically contending that “the people” referred to in the Second Amendment includes people who are part of a national community or have a sufficient connection with the United States.^[18] The Sitladeen court recognized a circuit split among U.S. Courts of Appeals about whom the Second Amendment includes in “the people,” noting that the Second, Ninth, and Tenth Circuits have assumed, without deciding, that Second Amendment rights can apply to unlawful aliens.^[19] The Seventh Circuit is the only circuit to have held that “the people” who enjoy Second Amendment rights includes “at least some unlawfully present aliens.”^[20]

After briefing ended in Sitladeen, the Supreme Court decided Bruen, which held that a New York law requiring “proper-cause” to carry a firearm outside one’s home violates the Second Amendment and is thus unconstitutional.^[21] Although Bruen did not address the meaning of “the people,” it provided a test for Second Amendment challenges, stating that the Second Amendment governs individual conduct, and that an individual’s conduct falls outside of Second Amendment protection only when a firearm regulation is consistent with “this Nation’s historical tradition.”^[22] The Sitladeen court noted that Bruen thus repudiates the means-end scrutiny adopted by the Second, Ninth, Tenth, and Eleventh Circuits.^[23]

In light of the Bruen decision, the Eighth Circuit accordingly inquired into whether 18 U.S.C. § 922(g)(5)(A) “governs conduct that falls within the plain text of the Second Amendment,” and that “[o]nly if the answer is yes do we proceed to ask whether § 922(g)(5)(A) fits within America’s historical tradition of firearm regulation.”^[24] The Eighth Circuit used Flores and Portillo-Munoz to swiftly conclude that 18 U.S.C. § 922(g)(5)(A) does not govern conduct that falls within the plain text of the Second Amendment, so 18 U.S.C. § 922(g)(5)(A) is facially constitutional in relation to the Second Amendment.^[25]

In reaching this conclusion, the Eighth Circuit noted that, like in Flores, Sitladeen’s claim is inherently about the plain text of the Second Amendment, specifically about whom is included in “the people.”^[26] Even in light of Bruen, the Eighth Circuit conceded that courts have criticized the Flores approach, indicating that a textual analysis is not the correct approach when determining whether a regulation violates the Second Amendment.^[27] Rather, these courts contend, the proper test is construing the phrase “the people” broadly, then considering “whether history and tradition support the government’s authority to impose the regulation.”^[28] The Eighth Circuit, however, restated that Bruen directs courts to analyze whether the Second Amendment’s plain text protects an individual’s conduct, and in Flores, the Eighth Circuit previously answered this question by ruling that the Second Amendment does not protect any conduct by unlawfully present aliens.^[29] Finally, the Eighth Circuit concluded its Second Amendment analysis by reasoning that Bruen does not usurp Flores, and because the Flores ruling that unlawfully present aliens are not a part of “the people” is binding Eighth Circuit precedent, the Eighth Circuit must follow this precedent regardless of whether its analysis in Flores was correct.^[30] Thus, the Eighth Circuit affirmed Sitladeen’s conviction because unlawfully present aliens are not part of “the people” of the Second Amendment.^[31] About a month following its affirmation of Sitladeen’s conviction, the Eighth Circuit denied Sitladeen’s respective petitions for a rehearing en banc and a rehearing by the panel.^[32]

III. Breaking Down the Eighth Circuit’s Arguable Reasoning

Although the Eighth Circuit was likely correct in choosing to apply the “scope of the right” test over the “means-end scrutiny” test, the Eighth Circuit incorrectly applied the “scope of the right” test by merely considering the plain text of the Second Amendment without considering the text in its historical tradition. Section III.A provides a detailed analysis of the Eighth Circuit’s reasoning in Sitladeen, and how the Eighth Circuit may not have truly followed Bruen and the “scope of the right” test to the extent that it claims it does. Further, Section III.B reiterates and evaluates the Eighth Circuit’s persistence in following its own precedent from United States v. Flores, and the Eighth Circuit’s controversial and incorrect refusal to overturn Flores. Section III.C compares the “scope of the right” test from Bruen with the “means-end scrutiny” test from Perez, Torres, Huitron-Guizar, and Jimenez-Shilon, concluding that the “means-end scrutiny” test is more lenient toward unlawfully present aliens, but that Sitladeen was likely destined for the same fate under either test. Lastly, Section III.D concludes by analyzing other considerations that the Eighth Circuit did not sufficiently assess or simply did not assess at all.

A. The Eighth Circuit’s Questionable Congruence with Bruen

The test used in Heller is essentially the same as the “scope of the right” test, as both provide that a proper Second Amendment inquiry into a given firearms regulation requires examining the Second Amendment’s plain text in the context of the Second Amendment’s historical tradition.^[33] Bruen refuses to apply the “scope of the right” test in its entirety, and the “scope of the right” test provides that a court reviewing a Second Amendment challenge to a firearms regulation must decide whether the regulation is consistent with the Second Amendment’s text in the context of its historical understanding.^[34] The Eighth Circuit walks a fine line by repeatedly mentioning the importance of being in congruence with the Bruen decision.^[35] Had the Eighth Circuit performed an analysis of the Second Amendment’s history—the other component of the “scope of the right” test—the Sitladeen decision would likely be more consistent with Bruen and the U.S. Supreme Court may have had the chance to overrule Sitladeen’s conviction.^[36]

However, it is unclear whether Sitladeen petitioned the U.S. Supreme Court for certiorari, but if the Supreme Court ever reviews the Eighth Circuit’s decision, it would possibly, maybe even probably, overturn Sitladeen’s conviction on the grounds of flawed reasoning in convicting Sitladeen, specifically the Eighth Circuit’s skewed analysis of the “scope of the right” test.^[37] The Eighth Circuit’s flawed version of the “scope of the right” test, however, may not necessarily be inconsistent with Bruen. Courts post-Bruen—including the Eighth Circuit—have interpreted Bruen as requiring courts to inquire into the challenger’s conduct before performing a textual analysis into the Second Amendment.^[38] However, the Eighth Circuit overlooks the fact that analyzing whether the text of the Second Amendment protects a challenger’s conduct is substantially the same as the “scope of the right” test. Meaning, the Eighth Circuit should still have dissected the text in the context of the history of the Second Amendment and similar regulations.^[39]

Following the path blazed by Heller, Bruen analyzed the constitutionality of New York’s proper-cause firearm regulation by examining the Second Amendment’s plain text, which included delving into the historical tradition of the Second Amendment by considering a number of sources.^[40] But, the Eighth Circuit did not consider any of these factors. Instead, the circuit only analyzed the Second Amendment’s text because, under Bruen, Flores unequivocally decided that any conduct by unlawfully present aliens is unlawful and thus unlawfully present aliens are not included in “the people” of the Second Amendment.^[41] Had the Eighth Circuit made a more informed decision by evaluating text in the context of history, the Eighth Circuit would have delved into Second Amendment literature, legislation, and case law.^[42]

The Eighth Circuit’s analysis would have been more reasonable had it considered history in its inquiry into the Second Amendment and similar regulations’ text. The court skewed the “scope of the right” test by disregarding this piece of the test entirely. Thus, while not explicitly barred by Bruen, the Eighth Circuit seems to have gotten it wrong by missing the overarching emphasis that Bruen places on conducting a plain-text analysis in the context of historical tradition.

B. Reluctance to Overturn Flores

Perhaps, the Eighth Circuit intentionally glanced past this “historical tradition” point from Bruen so it would not have to overturn its own skewed Second Amendment test established by the Flores precedent.^[43] The Eighth Circuit keeps in line with its Flores precedent by merely conducting the first component of the “scope of the right” test, which was just a strict textual analysis without considering historical context.^[44] The Eighth Circuit cites the four-sentence Flores opinion frequently and was a large reason the court upheld Sitladeen’s conviction.^[45] Further, the Flores opinion was based entirely on the Fifth Circuit’s decision in Portillo-Munoz, which also only considered the plain text without any historical analysis in deciding whether unlawfully present aliens are included in “the people” of the Second Amendment.^[46]

Both Flores and Portillo-Munoz were decided before Bruen, and perhaps both cases should be revisited because of the Sitladeen opinion’s lack of historical analysis and overreliance on Flores and Portillo-Munoz.^[47] Further, courts have criticized the correct “scope of the right” approach, which was not even truly adopted by the Eighth and Fifth Circuits in Flores and Portillo-Munoz, respectively.^[48] However, the main concern with Flores lies with its analysis, where, like the Sitladeen analysis, it merely considers the plain text of the Second Amendment.^[49] Because the Flores and Sitladeen analyses are so similar, the Eighth Circuit is likely correct in contending that Bruen does not necessarily usurp Flores, as the Fifth Circuit held that the Second Amendment does not include Flores in “the people” because of Flores’s conduct of being an alien “illegally present in this country”.^[50]

Although the Eighth Circuit was reluctant to overturn Flores, it conceded that Flores may have been incorrectly decided and reiterated that it must follow Flores merely because it is binding precedent.^[51] The Eighth Circuit should have overturned Flores in favor of conducting a more thorough “scope of the right” test. When the Eighth Circuit stated that Flores may have been incorrectly decided, perhaps the Eighth Circuit was precisely referring to the Fifth Circuit’s adoption of an incorrect “scope of the right” test by failing to analyze the Second Amendment’s text through a historical lens.^[52] The Eighth Circuit technically made a legally sufficient decision by following its precedent in Flores, but because the reasoning in Flores was so flawed, the Eighth Circuit should have overturned Flores by properly performing the “scope of the right” test.

C. “Scope of the Right” Test vs. “Means-End Scrutiny” Test: Did the Eighth Circuit Choose the Correct Test?

In contrast to the “scope of the right” test, however, the Second, Ninth, and Tenth Circuits followed the “means-end scrutiny” test when they assumed without deciding that the Second Amendment can confer rights to unlawfully present aliens.^[53] Further, courts have criticized the “scope of the right” approach incorrectly adopted by the Eighth and Fifth Circuits in Flores and Portillo-Munoz, respectively.^[54] Because it was not held unconstitutional by either Bruen or Heller, the Eighth Circuit could have employed the “means-end scrutiny” test adopted by both Rahimi and Kanter.^[55]

The “means-end scrutiny” test involves examining “the purposes (ends) which conduct is designed to serve and the methods (means) chosen to further those purposes.”^[56] Under its flawed version of the “scope of the right” approach, the Eighth Circuit ruled that any conduct by an unlawfully present alien is not protected by the plain text of the Second Amendment, and thus, unlawfully present aliens are never part of “the people.”^[57] However, the “means-end scrutiny” test is more lenient in who may be included in “the people,” as it allows at least some unlawfully present aliens to enjoy Second Amendment rights.^[58]

Even if the Eighth Circuit adopted the “means-end scrutiny” test in favor of the “scope of the right” approach, Sitladeen’s status as a violent criminal likely would have rendered the same result.^[59] The Eighth Circuit was likely to affirm Sitladeen’s conviction regardless of which test it used because of his persistent and dangerous criminal conduct. However, had the Eighth Circuit wanted to make waves in Second Amendment jurisprudence, it could have technically used the “means-end scrutiny” test to reverse Sitladeen’s conviction.

D. Other Considerations

Generally, unlawfully present aliens can be, and typically are, part of “the people” who are entitled to constitutional rights.^[60] For example, in his majority opinion in the Fourth Amendment case United States v. Verdugo-Urquidez, Chief Justice Rehnquist clarified that aliens could have constitutional rights upon entry into the United States after establishing “substantial connections” with the United States.^[61] Historically, courts have assumed that both authorized and unauthorized aliens enjoy constitutional rights by simply being present in the United States, and Chief Justice Rehnquist’s new test certainly infringed on unlawfully present aliens’ constitutional protections.^[62] However, Chief Justice Rehnquist never elaborated on what exactly “developing substantial connections” with the United States entails, and legal scholars could only speculate what this test meant for the tens of millions of immigrants in the United States.^[63]

In United States v. Esparza-Mendoza, the United States District Court for the District of Utah attempted to provide some clarity on the “substantial connections” test.^[64] The court undertook this test by looking to the historical connection between alien felons and the political community, and by analyzing the case on an individual basis.^[65] Although the court claims it undertook this test, the court solely analyzed Esparza-Mendoza’s interactions with the Immigration and Naturalization Service, which led the court to conclude that Esparza-Mendoza did not have a sufficient connection with the United States.^[66] Much like the holdings of Sitladeen and Flores, the court in Esparza-Mendoza took a similar categorical approach, holding that undocumented aliens cannot enjoy Fourth Amendment protections because undocumented aliens are not included in “the people” that the Fourth Amendment seeks to protect.^[67]

There remain a few takeaways from Esparza-Mendoza in comparison to Sitladeen: Sitladeen had not been previously deported from the United States, the Eighth Circuit exercised a broader categorical exclusion than the Esparza-Mendoza court did, and the Fourth Amendment and Second Amendment likely have different meanings of “the people.”^[68]

First, Sitladeen does not fall into the category of a “previously deported alien felon,” as there is no evidence he was previously deported from the United States.^[69] Thus, under the “sufficient connections” test from Esparza-Mendoza, Sitladeen would not be categorically excluded from “the people” under the Fourth Amendment.^[70] If the Eighth Circuit applied the same “sufficient connections” test from Esparza-Mendoza, the Eighth Circuit would have examined Sitladeen’s connections to the United States to determine whether Sitladeen was included in “the people” protected by the Second Amendment.^[71] However, the Eighth Circuit seemed fixed on affirming Sitladeen’s conviction by any means possible, and likely would have still affirmed Sitladeen’s conviction by holding that Sitladeen did not have a sufficient connection with the United States.^[72]

Second, the Eighth Circuit applied a broader categorical exclusion to the Second Amendment than the Esparza-Mendoza court applied to the Fourth Amendment, as the Eighth Circuit states that all aliens unlawfully present in the United States are categorically excluded from “the people” protected by the Second Amendment.^[73] The Eighth Circuit likely utilized a broader categorical exclusion because, in contrast to the Fourth Amendment, Second Amendment cases inherently revolve around firearms, and thus potential violence, so the Eighth Circuit may have been attempting to mitigate violent crime in deciding to exclude all unlawfully present aliens from Second Amendment protection.^[74]

Third, because “the people” likely has different meanings in the Fourth and Second Amendments, the Eighth Circuit had some leeway in deciding which test to apply before ultimately deciding to follow Flores and executing a skewed version of the “scope of the right” test.^[75] Thus, had the Eighth Circuit considered the reasons above, the Eighth Circuit likely still would have affirmed Sitladeen’s conviction regardless because of his status as a violent criminal, but these considerations still hold weight since they provide valid reasons for the Eighth Circuit to rule differently.^[76]

Further, a number of cases from various jurisdictions have held portions of 18 U.S.C. § 922 to be unconstitutional in some respect.^[77] The high number of cases refuting the constitutionality of 18 U.S.C. § 922 suggests that the statute as a whole is questionable, and the Eighth Circuit should have at least considered why these cases held 18 U.S.C. § 922 to be unconstitutional in some manner. Perhaps, a deeper dive into the constitutionality of 18 U.S.C. § 922(g)(5)(A) would have led the Eighth Circuit to hold the statute to be unconstitutional to a certain extent—even just as applied to Sitladeen—if the Eighth Circuit wanted to include unlawfully present aliens in “the people” protected by the Second Amendment.^[78] However, the Eighth Circuit avoided this analysis because it likely did not want to overturn its binding precedent in Flores and because it likely wanted to affirm Sitladeen’s conviction and restrict his firearm access due to the amount and severity of his violent criminal history.^[79]

Lastly, the Eighth Circuit did not consider that Sitladeen could have been acting in self-defense. Bruen, McDonald, and Heller hold that self-defense is a central component to the Second Amendment.^[80] However, any reasonable person can conclude that Sitladeen was not using his sixty-seven firearms in self-defense, especially given that he had a pending murder charge in Canada and an extensive criminal history.^[81]

The prospect of self-defense raises an interesting point, though: what if Sitladeen only possessed one firearm at the time of his arrest? The possession of one gun as opposed to sixty-seven certainly would provide Sitladeen with an argument that he possessed the firearm for self-defense purposes, and the Eighth Circuit would then have to analyze whether Sitladeen possessed the firearm for self-defense. However, a court has yet to address this particular self-defense issue regarding unlawfully present aliens. Certainly, at some point, a court will have to address this issue of whether an unlawfully present alien is protected by the Second Amendment when that unlawfully present alien possesses a firearm for self-defense purposes, but the Eighth Circuit was able to avoid this question because of the large quantity of firearms that Sitladeen possessed.^[82]

IV. The Effects of Allowing Unlawfully Present Aliens to Have Second Amendment Rights

Because of sensitivity surrounding the political issues of Second Amendment rights and illegal immigration, there remain other policy arguments that the Eighth Circuit could have considered in deciding Sitladeen’s fate. This part will examine the various policy considerations surrounding the largely unknown effects of allowing undocumented immigrants to possess firearms by being included within the meaning of “the people” protected by the Second Amendment.

It remains relatively unknown whether undocumented immigrants have higher incarceration and crime rates than United States citizens or people lawfully present in the United States.^[83] For example, Hannah Davis discussed a 2021 Department of Justice report revealing that, in 2018, 64% of federal arrests involved noncitizens, while noncitizens make up only 7% of the United States population.^[84] Further, Davis describes “[s]everal chilling examples” of violent crimes committed by people who are unlawfully present in the United States.^[85] However, a study conducted by the Cato Institute concluded that “[i]llegal immigrants are 47 percent less likely to be incarcerated than natives.”^[86] These studies appear to somewhat conflict with one another, perhaps because of political motivations, but either side of the argument can pull data supporting their case. So, it remains important to examine the effects of generally increasing civilian access to firearms, regardless of whether the person is lawfully present in the United States.

A study conducted by the Harvard Injury Control Research Center suggests that in states with higher household gun ownership, firearm homicide and overall homicide rates are higher.^[87] Higher rates of gun ownership correlate to more violence, so generally extending gun ownership to more groups of people will inevitably lead to more violence, as seen through higher firearm homicide and overall homicide rates in states with higher gun ownership.^[88] Thus, from a policy perspective, the Eighth Circuit likely got it right by ruling that unlawfully present aliens in the United States are not included within “the people” protected by the Second Amendment, given that any extension of this right could potentially lead to higher rates of violent crime.^[89] Regardless of whether undocumented immigrants commit more crimes than citizens and people lawfully present in the United States, Second Amendment rights likely should not be extended to more people, as this extension will lead to more violence.

Further, extending Second Amendment rights to unlawfully present aliens potentially opens the gate for more constitutional rights to be extended to unlawfully present aliens. However, the implications of extending other constitutional rights to unlawfully present aliens are less urgent than the implications of extending Second Amendment rights to unlawfully present aliens because of the public safety concerns surrounding the potential increase in violent crime that may accompany an extension of Second Amendment rights to unlawfully present aliens.

V. Conclusion

Overall, the Eighth Circuit likely correctly decided Sitladeen from both legal and policy perspectives when they decided to affirm Sitladeen’s conviction under 18 U.S.C. § 922(g)(5)(A) by holding that unlawfully present aliens in the United States are not included in “the people” protected by the Second Amendment.^[90] From a legal perspective, although the Eighth Circuit employed a flawed version of the “scope of the right” test by skipping over the test’s “historical background” component, this flawed version is legally sound, but the Eighth Circuit’s analysis would have been stronger and more reasonable had it analyzed the Second Amendment’s text in the context of its historical background.^[91]

Further, the Eighth Circuit placed undue emphasis on its four-sentence Flores opinion when providing its reasoning for affirming Sitladeen’s conviction.^[92] However, the Eighth Circuit again made a legally sound decision, although it seemed to avoid a stronger, and perhaps more difficult analysis in favor of upholding its binding, yet weak precedent, in Flores. Another criticism of the Eighth Circuit’s reasoning is that other circuits have employed the “means-end scrutiny” test when analyzing 18 U.S.C. § 922(g)(5)(A)'s congruence with the Second Amendment, which provides more lenity to defendants because it analyzes Second Amendment cases on an individual basis rather than categorically excluding unlawfully present aliens from Second Amendment protection as the “scope of the right” test does.^[93]

The Eighth Circuit also failed to consider that other constitutional amendments include unlawfully present aliens in their respective interpretations of “the people,” a multitude of cases have declared 18 U.S.C. § 922 to be unconstitutional in some respect, and that self-defense is a central component of the Second Amendment.^[94] However, the Eighth Circuit’s legal reasoning was technically sound but remains questionable. From a policy perspective, the Eighth Circuit also likely got it right because of Sitladeen’s status as a violent criminal^[95] and the fact that increased gun ownership and access is correlated with higher rates of firearm homicide and overall homicide.^[96] Sitladeen had charges in Canada of murder and Fentanyl trafficking, so the Eighth Circuit undoubtedly made the correct decision in deciding to incapacitate Sitladeen by affirming his lengthy prison sentence.^[97] Thus, although the Eighth Circuit’s reasoning seems weak, the court made the correct decision in affirming Sitladeen’s prison sentence from both legal and policy perspectives.

Scott Callaghan