Illegal Immigrants and the 2A

The courts are working through cases involving both the status of illegal immigrants and also the Second Amendment; this particular case turns on both issues.

In 2022, the Supreme Court’s decision in New York State Rifle & Pistol Association v. Bruen held that when an individual’s conduct falls within the Second Amendment’s text, the government can defend a gun restriction only by showing it is consistent with the Nation’s historical tradition of firearm regulation. Relying on Bruen, Rebollar, Osorio’s public defender moved to dismiss, arguing that § 922(g)(5) was unconstitutional as applied to him because, given his years in the country and close ties to U.S. citizens, he fell within “the people” the Amendment protects and the government could not justify disarming him.

Prosecutors countered that undocumented immigrants fall outside that protected category altogether or, alternatively, that § 922(g)(5) fits within a longstanding tradition of status-based restrictions on who may be armed. But District Judge Nancy Torresen didn’t buy this argument. Reading the Court’s precedents together, the judge held that unlawfully present noncitizens with substantial ties (like Rebollar Osorio) fall within that term. As a result, their right to possess firearms is protected by the Second Amendment, and the government must justify any restriction.

Judge Torresen then applied Bruen’s history‑and‑tradition test....

On appeal, the First Circuit reversed but did so without deciding whether undocumented immigrants like Rebollar Osorio are within “the people.” Instead, the panel assumed for argument’s sake that he could claim Second Amendment coverage and skipped directly to Bruen’s historical inquiry.... It did not look for founding-era statutes that specifically targeted undocumented immigrants, a category that did not exist in the same way. Instead, it asked whether there is a tradition of restricting arms to those firmly within the political community and disarming those deemed outside or insufficiently loyal. Drawing on English and early American case law and statutes, the panel emphasized laws that limited arms for groups such as non‑Protestants, persons who refused loyalty oaths, and others treated as outside the core polity. In the court’s view, those measures reflected a longstanding use of status-based rules to control who could be armed.

Nice to see the courts taking Bruen seriously as the controlling precedent. Both of the courts' conclusions are defensible, as both recognize the applicability of the Second as a right they have to take into account. The open question is to what degree it is a right available to those who have violated the laws to get here in the first place.