Third Circuit Rejects Facial Challenge to Ban on Nonimmigrant Aliens’ Gun Possession

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.

Judge Peter Phipps concurred in the judgment:

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 in the Constitution is “a term of art” with consistent meaning. As defined by the Supreme Court, ‘the people’ refers to “a class of persons who are part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community,” with the understanding that the relevant national community is the national “political community.” {[T]he Founding generation, influenced by Locke and Montesquieu, “spoke of ‘the people,'” to mean “the sovereign community that consented to a legitimate government” ….} While not every contour of the national political community has been identified, adult citizens are part of the people, and excludable aliens are not. It may also be that nonimmigrants are, as a class, not part of the national political community as they are citizens of another country with permanent residences abroad, and they cannot vote in federal elections or serve on federal juries. But it is not necessary in this case to determine whether nonimmigrants, as a class, are not part of ‘the people.’

Rather, Aleman-Lozano’s facial challenge to § 922(g)(5)(B) will fail if one nonimmigrant visa holder is outside of the national political community. And if nothing else, receipt of one type of nonimmigrant visa—the C-1 transit visa—does not induct foreign nationals into ‘the people.’ A C-1 transit visa allows foreign nationals to pass through this country to reach another foreign country and has a maximum duration of stay of 29 days. The limitations on the visa—it is given to foreign nationals with permanent residence abroad who are travelling through this country transiently—prevent C-1 transit visa holders from developing a “sufficient connection” with this country to be considered part of the national political community. Consequently, C-1 transit visa holders are not part of ‘the people,’ and the Second Amendment does not protect their ability to keep and bear arms.

That conclusion is fatal to Aleman-Lozano’s facial challenge. It is therefore unnecessary for the resolution of this case to broadly assume that each and every nonimmigrant visa holder is part of ‘the people.’

Patrick J. Bannon and Carlo D. Marchioli represent the government.