The U.S. Court of Appeals for the Ninth Circuit has affirmed the conviction of Oscar Vazquez-Ramirez for possessing a firearm while being unlawfully present in the United States. The ruling relies on a historical analysis suggesting that regulations restricting firearm access for non-citizens are consistent with the nation’s traditions, even as the court navigated the implications of the Supreme Court’s landmark Second Amendment decision in *Bruen*.
Vazquez-Ramirez, who entered the U.S. illegally as a child and has no current legal status, challenged his conviction under 18 U.S.C. § 922(g)(5)(A), which bans firearm possession by aliens “illegally or unlawfully in the United States.” His challenge was an as-applied claim under the Second Amendment.
The conviction stems from a December 2021 traffic stop in Othello, Washington, where police found a firearm in his waistband. Following a conditional guilty plea, Vazquez-Ramirez preserved his right to appeal the constitutional challenge.
Overruling Prior Scrutiny
The three-judge panel, in a *per curiam* opinion, first addressed a procedural hurdle: the standard of review. The Ninth Circuit had previously held in *United States v. Torres* (2019) that Second Amendment challenges to this specific statute were subject to intermediate scrutiny. However, the panel ruled that *N.Y. State Rifle & Pistol Assoc’n v. Bruen* (2022) rendered the *Torres* decision “clearly irreconcilable” and therefore overruled it.
The *Bruen* decision mandated a new, two-step framework for evaluating Second Amendment claims: first, determining if the conduct is covered by the amendment’s plain text; and second, if so, requiring the government to prove the regulation aligns with the nation’s historical tradition of firearm regulation.
Assuming Protection, Applying History
In applying the *Bruen* framework, the Ninth Circuit panel took a cautious approach on Step One. It explicitly chose to “assume without deciding” that individuals illegally present in the U.S. could be considered part of “the people” protected by the Second Amendment—a stance taken by several other federal circuits.
The court then proceeded directly to Step Two, where it found the government met its burden. The panel concluded that 18 U.S.C. § 922(g)(5)(A) is consistent with the historical tradition of firearm regulation regarding non-citizens.
The historical analysis focused on three eras:
1. English Common Law: The court noted that historical English law distinguished sharply between natural-born subjects and “aliens,” granting the latter a “much more circumscribed” set of rights, often tied to land ownership, which aliens frequently could not secure. This tradition also saw restrictions on Catholics, perceived as owing allegiance to a foreign sovereign (the Pope).
2. Pre-Ratification Colonial Era: Colonial statutes frequently restricted firearm possession by groups viewed as outside the political community, such as Native Americans, and later by Loyalists who refused oaths of allegiance following the Revolution. The court emphasized that firearm restrictions were historically tied to national allegiance.
3. Post-Ratification History: Early American commentators, like Justice Joseph Story, interpreted the Second Amendment right as belonging to “citizens.” Furthermore, many early state constitutions limited the right to “citizens,” and where they used the phrase “the people,” the Supreme Court later interpreted it synonymously with citizens.
The panel found that the modern statute prohibiting firearm possession by illegal aliens maps onto this historical “how” and “why”—disarming those who have not sworn allegiance or who are present unlawfully, based on historical concerns about loyalty and potential danger.
Concurrence Argues Textual Exclusion
Judge Patrick J. Bumatay concurred in the judgment but offered a notably different reasoning path, one that avoided the historical burden placed on the government.
Judge Bumatay argued that the court should have stopped at *Bruen’s* first step: the plain text. He contended that “the people” in the Second Amendment is a term of art referring exclusively to “members of the [Nation’s] political community,” citing *District of Columbia v. Heller*.
He reasoned that illegal aliens, by definition, owe allegiance to a foreign sovereign and are present in violation of federal law. Therefore, they cannot be part of the sovereign political community that ordained and established the Constitution. If they are outside the text’s scope, the Second Amendment simply does not apply, and the law stands without needing a historical justification.
Judge Bumatay acknowledged the complexity regarding other categories of non-citizens, such as legal permanent residents, but maintained that the exclusion of those unlawfully present is clear based on textual analysis.
Ultimately, both the majority opinion and the concurrence agreed that Vazquez-Ramirez’s challenge failed, leading to the affirmation of his conviction and probation sentence.