BLOOMBERG LAW: Gun Rights Groups Back Texas’ Invasion Defense at Mexican Border

Gun rights groups have come to the aid of Texas Gov. Greg Abbott (R) in urging a federal appeals court to let Texas defend the US-Mexico border through arrests and removals.

A filing Wednesday from a dozen nonprofits groups, including several that advocate for gun rights, argues that a surge of migrants entering the country unlawfully equals an invasion that Texas has a right to repel through a controversial new state law that the Biden administration opposes.

Texas’ S.B.4, currently on hold pending review by the US Supreme Court, makes it a state level offense to enter the country illegally and authorizes state judges to deport violators. Such enforcement measures historically have fallen to the federal government, but the gun groups say Biden has abandoned that duty and Texas must fill that void.

“Had the president been enforcing the nation’s immigration laws and protecting the nation’s southern border, there would have been no reason for Texas to enact SB4,” the groups argue.

Guns rights groups have long had a cozy relationship with Republican lawmakers in Texas. Abbott has mostly opposed calls to limit sales of automatic firearms while making it legal to open carry without a permit.

The gun groups’ brief is a full-throated support of Texas’ legal arguments, while also echoing some Republican political talking-points. It argues that Texas is a sovereign entity empowered to use an armed militia to defend itself when necessary, and goes so far as to question potential influence of the Chinese government on officials in the Biden administration and the possibility that President Joe Biden could lose his mental faculties.

The US Court of Appeals for the Fifth Circuit on April 3 will hold arguments to review an injunction a district court judge issued last month against Texas’ border enforcement measure. But perhaps more consequently, the filing comes days before a Monday deadline for the US Supreme Court to decide whether to let the law go into effect pending a decision from the intermediary court.

The filing echoes arguments Texas’ lawyers are making that the state has a right to defend the border under the US Constitution’s invasion clause. The invasion clause defense is also central to two other border challenges Biden brought against Texas, which involve the state’s use of razor wire and floating river barriers.

The gun groups said the district court was mistaken in understanding invasion only to mean an armed assault by a foreign army. Record levels of migrant crossings fit the definition, they argue.

“The truth is that there has been a massive national failure of enforcement of the nation’s immigration laws, and under the government’s view, no state can act when the president stands down,” they argue.

The groups who filed the brief are America’s Future, Gun Owners of America Inc., Gun Owners Foundation, Gun Owners of California, Tennessee Firearms Association, Tennessee Firearms Foundation, Citizens United, Citizens United Foundation, the Presidential Coalition LLC, the Senior Citizens League, US Constitutional Rights Legal Defense Fund, and Conservative Legal Defense and Education Fund.

The case is Texas v. Las Americas Immigr. Advoc. Ctr., 5th Cir., No. 24-50149, filing 3/13/24.