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(CN) — The First Circuit Court of Appeals was asked Thursday to consider whether and to what extent immigrants lacking permanent legal status are considered part of “the people” who are constitutionally protected under the Second Amendment’s “right of the people to keep and bear Arms.”
On appeal from the U.S. District Court for the District of Puerto Rico, Moreno Vizcaíno-Peguero, a Dominican migrant living in Puerto Rico, claims the statute of his conviction under the Gun Control Act prohibiting noncitizen immigrants from possessing guns is “a complete and absolute ban on firearm possession without a particularized or individualized determination of dangerousness or untrustworthiness.”
Vizcaíno-Peguero argues his 2023 judgment of conviction for being a noncitizen in possession of a firearm and ammunition under 18 U.S.C. § 922(g)(5) should be overturned because Second Amendment jurisprudence post-New York State Rifle & Pistol Association Inc. v. Bruen requires the government to affirmatively prove that the firearm regulation is consistent with the historical tradition of firearm regulation in the country.
Although the landmark Bruen decision did not address the meaning of “the people,” it adopted a test for Second Amendment challenges championed by conservative judges focused on text, history and tradition.
Bruen stated that the Second Amendment governs individual conduct and that an individual’s conduct falls outside of Second Amendment protection only when a firearm regulation is consistent with “this nation’s historical tradition.”
Vizcaíno-Peguero argues the Supreme Court has taken an inclusive interpretation of the term “the people” as “an omnibus, and linguistically singular term for multiple people, or persons.”
“Membership within the group constitutionally denoted as ‘the people’ was primarily defined by physical presence within the jurisdiction at the time of the founding,” his lawyers wrote in an appellant brief. “Therefore, persons, or human beings, physically present in the United States were, and are, entitled to firearm possession.”
He further argues the Supreme Court recognized that “the people” refers “to a class of persons who are part of a national community or who have otherwise developed sufficient connection to be considered part of that community.”
During oral arguments on Thursday, Vizcaíno-Peguero’s federal public defender, Jackson Boyd Whetsel, conceded that his presence as an illegal immigrant was unlawful, “but it’s not a crime.”
“And he was otherwise doing the right things, otherwise existing legally, not breaking other laws,” the lawyer argued. “And he was doing the right thing in trying to become a citizen, to gain some status.”
Responding to Vizcaíno-Peguero’s appeal, the U.S. government argues that, as an ”unlawful alien,” Vizcaíno is not part of “the people” covered by the Second Amendment.
“And even if he were, prohibiting unlawful aliens from possessing firearms is consistent with this nation’s historical tradition of firearm regulation,” the U.S. Attorney’s Office wrote in an appeals brief.
The government argues that the statute disarming noncitizens who are unlawfully present in the United States does not “burden a law-abiding citizen’s right to armed self-defense in a manner inconsistent with historical precedent,” quoting Bruen.
“Instead, the statute fits squarely within a historical tradition that limited Second Amendment rights to law-abiding citizens,” they wrote.
The U.S. government cited examples from the country’s colonial era to support that historical antecedents for disarming noncitizens: Massachusetts and Virginia’s prohibition on arming Native Americans; Virginia’s prohibition on firearm possession by Catholics unless allegiance sworn; and some colonies’ disarmament of loyalists or those who refused to swear allegiance.
During oral arguments, Chief U.S. Judge of the United States Court of Appeals for the First Circuit David Barron said “not everybody who is in ‘the people, ’ just by virtue of being in ‘the people,’ has an unlimited right to possess a handgun.”
“That’s Rahimi , that’s Heller , that’s Bruen , all of those make that clear,” the Barack Obama-appointed judge said. “So then the question is, is there a condition this person has that justifies the regulation of him having the handgun? Congress’ judgment is that condition is having an unlawful presence in the United States.”
Barron was joined on the panel by U.S. Circuit Judges Jeffrey Howard, a George W. Bush appointee, and Lara Montecalvo, a Joe Biden appointee.
The three-judge panel did not rule from the bench on the appeal.
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