A few passages from U.S. v. Aleman-Lozano, handed down yesterday by the Third Circuit with Judge Patty Shwartz delivering the opinion and Judge Theodore McKee joining in the decision:
Aleman-Lozano is a native of El Salvador and a citizen of that country. He entered the United States without authorization, yet in 2017 he was issued a nonimmigrant visa that included permission to work. Since his arrival, he has lived with his family in the United States, pursued schooling, and worked in the District of Columbia.
In September 2021, a Pennsylvania state trooper stopped Aleman-Lozano for a traffic violation. During the encounter, the officer observed a rifle cartridge on the passenger seat. This led to a search warrant, which uncovered a pistol loaded with a sixteen‑round magazine. Aleman-Lozano told investigators that he had purchased the weapon from an unnamed person in Maryland. The pistol lacked a serial number….
Aleman-Lozano was indicted under 18 U.S.C. § 922(g)(5)(B), a provision that generally bars aliens who are in this country on a nonimmigrant visa (subject to certain exceptions) from possessing firearms, and he mounted a facial challenge to the constitutionality of the statute. The panel, led by Judges Shwartz and McKee, assumed for the sake of argument—without deciding—that “the people” referenced in the Second Amendment could include noncitizens who are lawfully present, but it concluded that the restriction at issue rests on a historical footing. The court identified analogies to the era before and around the time of the Second Amendment’s ratification to justify the restriction:
English law drew a clear line between “aliens” and “natural-born subjects.” Natural-born subjects were those born inside the realm and owing fealty to the Crown; aliens were born elsewhere. Under that framework, natural-born subjects enjoyed a broad spectrum of rights acquired by virtue of birth within the Crown’s protection, while aliens faced far narrower rights, which they could only gain through residence and which they risked losing if they left. For instance, aliens could not own land, and the ownership of land and firearms were historically linked. In eighteenth‑century England, the right to bear arms was largely limited to the landed gentry by statute. An alien could acquire land only if he naturalized by swearing allegiance before Parliament, a status that effectively placed him in the same position as someone born within the Crown’s dominion. The English Bill of Rights likewise restricted gun ownership to individuals loyal to the Crown and provided that Protestants “may have Arms for their Defence suitable to their Conditions, and as allowed by Law.”
Before the American colonies revolted, some colonial governments forbade white individuals who refused to pledge allegiance to the British Crown from collecting firearms. Georgia, for example, disarmed Acadians who were indentured servants—a group of French settlers who would later become known as Cajuns—because they declined to remain loyal to the British government during the French and Indian War. The disarmament of Acadians proceeded purely on grounds of loyalty.
After the start of the American Revolution, states removed weapons from British loyalists due to their allegiance to the Crown rather than to the American cause. The Continental Congress urged the states to take immediate action to disarm those who were openly disaffected to the American project or who refused to defend the United Colonies by arms against British fleets and armies. Responding to this appeal, the states disarmed individuals who would not swear loyalty to the state or to the American cause. Thus, from English common law through the revolutionary era around the Constitution’s framing, there existed a historical practice of disarming those deemed disloyal to the sovereign….
With this historical backdrop in mind, the court concluded that the rationale for, and the method by which, § 922(g)(5)(B) restricts firearm possession align with the principles that underlie the country’s regulatory tradition, because the statute addresses the same question of allegiance in substantially the same manner as the historical laws.
Regarding the purpose of the restriction, allegiance is portrayed as a marker of trustworthiness and a signal of willingness to conform to the social order in exchange for the privileges of citizenship. Noncitizens, by their status, have not yet affirmed their allegiance to the sovereign. This has consistently served as the basis for disarming them. Section 922(g)(5)(B) disarms noncitizens who bear a presumptive allegiance to a foreign state rather than to the United States, thereby addressing the same issue raised by historical restrictions.
Concerning the “how” of the restriction, the historical laws and § 922(g)(5)(B) limit firearm possession in the same fashion. Historically, governments disarmed people unless and until they swore an oath of allegiance to the sovereign. One could obtain the right to carry arms after taking such an oath. In today’s statute, § 922(g)(5)(B) disarms individuals who either refuse or are unable to swear loyalty to the United States. Those noncitizens who pursue naturalization and take the oath renouncing allegiance — as a demonstration of trustworthiness — ultimately gain the right to bear arms. Thus, § 922(g)(5)(B) tackles the same loyalty concern as the historical rules and does so in the same way.
Judge Peter Phipps joined the judgment in a concurring opinion:
The Majority’s reasoning rests on an unnecessary assumption, with broad reach, that all nonimmigrant visa holders form part of “the people” and thus enjoy full Second Amendment rights. A nonimmigrant is a foreign national who enters the United States temporarily and lacks a permanent home here, such that the precise scope of “the people” remains unsettled in this context. The term “the people” is a legal notion with a consistent meaning. The Supreme Court has described it as referring to a class of individuals who are part of a national community or who have developed a meaningful connection with the country to be considered part of that community—the national political community. The Founding generation, drawing on the ideas of Locke and Montesquieu, used “the people” to denote the sovereign community that consented to legitimate government. While we may not fix every detail of this community, adult citizens are within the scope of “the people,” whereas excludable aliens are not. It may be the case that nonimmigrants, as a category, are not part of the national political community, since they cannot vote in federal elections or serve on federal juries. But it is unnecessary, for purposes of this case, to decide whether nonimmigrants as a class are excluded from “the people.”
Instead, Aleman-Lozano’s facial challenge to § 922(g)(5)(B) fails if even a single nonimmigrant visa holder falls outside the national political community. And at a minimum, merely holding a C-1 transit visa does not bring foreign nationals into the “the people.” A C-1 visa permits transit through the United States to reach another country and restricts stay to a maximum of 29 days. Because the visa is designed for individuals with permanent residences abroad who are merely passing through, it does not create a sufficient connection to render the holder part of the national political community. Consequently, C-1 transit visa holders are not within “the people,” and the Second Amendment does not shield their right to possess firearms.
Hence, the conclusion undermines Aleman-Lozano’s facial challenge. Therefore, it is unnecessary to broadly declare that every nonimmigrant visa holder belongs to “the people.”
Patrick J. Bannon and Carlo D. Marchioli appeared for the government.
