Third Circuit Rejects Facial Challenge to Ban on Nonimmigrant Aliens' Gun Possession
Reason · RC · trust 40/100
Some excerpts from U.S. v. Aleman-Lozano , decided yesterday by Third Circuit Judge Patty Shwartz, joined by Judges Theodore McKee:
Aleman-Lozano is a native and citizen of El Salvador. He entered the United States unlawfully but, in 2017, was granted a nonimmigrant temporary visa with work authorization. Since entering the United States, he has resided with his family, attended school, and worked in Washington, D.C.
In September 2021, a Pennsylvania state trooper pulled Aleman-Lozano over for a traffic violation .... During the stop, the trooper saw a rifle cartridge on the passenger seat. As a result, the trooper obtained a search warrant and found a pistol containing a loaded sixteen-round magazine, which Aleman-Lozano told police he had purchased from an unidentified individual in Maryland. The pistol did not have a serial number....
Aleman-Lozano was prosecuted under 18 U.S.C. § 922(g)(5)(B), which generally makes it illegal for aliens present under a nonimmigrant visa (with some exceptions) to possess guns, and brought a facial challenge to the constitutionality of the provision. Judges Shwartz and McKee assumed without deciding that "the people" in the Second Amendment included noncitizens who were lawfully present, but concluded that "there is historical support for the challenged restriction" based on "analogues from before and at the time of the Second Amendment's ratification":
English common law distinguished between "aliens and natural-born subjects. Natural-born subjects are such as are born within the dominions of the crown of England, that is, within the ... allegiance of the king; and aliens, such as are born out of it." Under the common law, "natural-born subjects [had] a great variety of rights, which they acquire[d] by being born within the king's ligeance," while the rights of "aliens ... [were] much more circumscribed, being acquired only by residence here, and lost whenever they remove[d]." For example, "aliens" could not hold land, and "land and gun ownership were historically linked." "[T]he right to own guns in eighteenth-century England was statutorily restricted to the landed gentry." An alien could own land if he became naturalized by swearing allegiance to the sovereign before Parliament, which "placed [him] in almost 'exactly the same state as if he had been born in the' dominions of the Crown." The English Bill of Rights also limited gun ownership to those loyal to the Crown. It "guarantee[d] that 'Protestants ... may have Arms for their Defence suitable to their Conditions, and as allowed by Law.'"
Before the American Revolution, some "colonial governments prohibited any white person unwilling to affirm his allegiance to the British Crown from collecting firearms." For example, Georgia disarmed indentured Acadians, a "group of French settlers and ancestors to the Cajuns, [who] 'refused to be loyal subjects of the British government' during the French and Indian War." The disarmament of Acadians "was based solely on loyalty concerns."
After the American Revolution began, the states disarmed British loyalists because of their allegiance to the English monarch and not to the American cause. The Continental Congress called upon the States "immediately to cause all persons to be disarmed ... who are notoriously disaffected to the cause of America, or who have not associated, and shall refuse to associate, to defend, by arms, these United Colonies, against the hostile attempts of the British fleets and armies." The states answered the call and disarmed those who refused to swear allegiance to the state and/or to the American cause. Thus, from English common law through the Revolutionary period around the time of ratification, there was a historical tradition of disarming those considered disloyal to the sovereign....
With this history in mind, we conclude that why and how § 922(g)(5)(B) restricts firearms possession is "consistent with the principles that underpin our regulatory tradition" because it addresses the same allegiance concern as the historical laws and does so in the same way.
As to why the restriction exists, "[a]llegiance serves as a mark of trustworthiness," and it "shows one's willingness to accede to the terms of social order in exchange for the full benefits of citizenship. [Noncitizens], as a matter of their status, have not yet affirmed their allegiance to the sovereign. That has uniformly served as the basis for disarming them." Section 922(g)(5)(B) disarms noncitizens who bear a "presumptive allegiance to a foreign state," and not to the United States, and thus addresses the same problem as the historical laws.
As to the "how" inquiry, the historical laws and § 922(g)(5)(B) burden the right in the same way. Historically, governments disarmed individuals "unless and until they swore an oath of allegiance to the sovereign." An individual could obtain the right to bear arms after swearing an oath of allegiance. Today § 922(g)(5)(B) "disarms persons unwilling or unable to swear the oath of allegiance and loyalty to the United States." Noncitizens disarmed under § 922(g)(5)(B) who follow the path prescribed by Congress and undergo the naturalization process, which culminates in taking the oath of renunciation and allegiance "as a demonstration of trustworthiness," gain the right to bear arms. Section 922(g)(5)(B) addresses the same loyalty concern as the historical laws and does so in the same way.
The Majority Opinion makes a needless assumption, the breadth of which is staggering, viz. , that all nonimmigrant visa holders are part of "the people" and therefore have full Second Amendment rights. A nonimmigrant is a foreign national with a permanent residence abroad who comes to the United States on a temporary basis, such as for tourism, study, business, medical treatment, or transient travel. Whatever are the precise contours of 'the people,' that term certainly does not include every such visitor....
The term 'the people' as used…
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