Summary
The First Circuit reversed the District of Maine's dismissal of an indictment charging Alberto Rebollar-Osorio with possessing a firearm while unlawfully present in the United States under 18 U.S.C. § 922(g)(5)(A). The court declined to resolve whether unlawfully present aliens are among "the people" protected by the Second Amendment because, under the second step of the Bruen framework, the statute is consistent with the Nation's historical tradition of firearm regulation. The court relied in part on its contemporaneous decision in United States v. Vizcaíno-Peguero and remanded for further proceedings.
Topics
Practice areas
Questions Presented
- Whether the court needed to decide whether an alien illegally or unlawfully present in the United States is among the people protected by the Second Amendment.
- Whether 18 U.S.C. § 922(g)(5)(A), as applied to Rebollar-Osorio, is consistent with the Nation's historical tradition of firearm regulation under the second step of the Bruen framework.
- Whether the government's historical evidence, including English common-law practices, colonial disarmament measures, and founding-era laws conditioning firearm possession on allegiance, was sufficient to sustain the statute.
Holdings
- The court did not need to resolve the first-step question because Rebollar-Osorio's challenge failed at Bruen's second step.
- Section 922(g)(5)(A), as applied to Rebollar-Osorio, fits comfortably within the Nation's historical tradition of firearm regulation and therefore survives his Second Amendment challenge.
- Secondary sources may be considered as part of the historical evidence relevant to the Bruen inquiry.
Key quotations
“if a Second Amendment challenge to § 922(g)(5)(A) fails at the second step of the Bruen framework, there is no reason to resolve the first-step question of whether aliens in this country illegally or unlawfully are among "the people" to whom the Second Amendment refers.” (5)
“It instead needs to identify only "relevantly similar" precursors that, when considered together, establish a history and tradition of firearms regulation that encompasses that measure.” (10)
Factual background
Rebollar-Osorio was charged with possessing a firearm while being an alien illegally or unlawfully present in the United States. He challenged § 922(g)(5)(A) under the Second Amendment, both facially and as applied. The district court found that he had sufficient connection to the United States to be among the people protected by the Second Amendment, but held that the government had not established a historical tradition supporting application of the statute to him.
Procedural history
A grand jury in the District of Maine charged Rebollar-Osorio with knowingly possessing a firearm while being an alien illegally or unlawfully in the United States. He moved to dismiss the indictment, arguing that § 922(g)(5)(A) violated the Second Amendment facially and as applied. The district court granted the as-applied motion, concluding that Rebollar-Osorio was among the people protected by the Second Amendment and that the government had not shown a sufficient historical tradition of firearm regulation. The First Circuit reviewed de novo, reversed, and remanded.
Remand instructions
Remand for further proceedings consistent with the opinion.