Ninth Circuit Upholds Campaign Contribution, Firearms Ban for Foreign Nationals, Nonimmigrant Visa Holders

Steven D. Schwinn, John Marshall Law School

The Ninth Circuit last week upheld federal bans on campaign contributions and firearms possession by foreign nationals and nonimmigrant visa holders, respectively, against First and Second Amendment challenges. The ruling keeps the bans in place.

The case tested the federal ban on campaign contributions by foreign nationals. The court held first that Congress had authority impose the ban:

The federal government has the "inherent power as sovereign to control and conduct relations with foreign nations." . . . Thus, where, as here, Congress has made a judgment on a matter of foreign affairs and national security by barring foreign nationals from contributing to our election processes, it retains a broad power to legislate. . . . A prohibition on campaign donations and contributions by foreign  nationals is necessary and proper to the exercise of the immigration and foreign relations powers.

The court held next that the ban didn't violate the First Amendment. The court relied on the Court's summary affirmance in Bluman v. FEC, writing that "although '[t]he precedential effect of a summary affirmance extends no further than the precise issues presented and necessarily decided by those actions,' Blumen did decide the precise issue present in this case."

As to the ban on firearm possession by nonimmigrant visa holders, the court acknowledged that there's some ambiguity about whether the law "burdens conduct protected by the Second Amendment" (the first step in the two-step Second Amendment analysis): 

Some courts have read the historical right as one afforded only to citizens or those involved in the political community, while others have focused instead on an individual's connection to the United States. Nonimmigrant aliens, like those unlawfully present, are neither citizens nor members of the political community.

Still, the court assumed that the Second Amendment applied and moved to the second step, application of intermediate scrutiny, and upheld the ban:

The government's interest in this case is straightforward. The government's interest is . . . crime control and maintaining public safety. . . .

Further, the statute reasonably serves this important interest. It carves out exceptions for visa holders who are less likely to threaten public safety. . . . We find this tailoring sufficient.