On January 8, 2019, the Ninth Circuit Court of Appeals decided the United States v. Torres[i], in which the court examined whether the federal statute that prohibits unlawful aliens from possessing firearms violated the Second Amendment. The relevant facts of Torres are as follows:

Torres was born in Mexico in 1985. Approximately four years later, he, his younger sister, and his mother moved to San Jose, California, to join Torres’s father, who had entered the United States a year earlier. Nothing in the record suggests that either of Torres’s parents ever had an immigration status through which Torres could qualify for legal status in the United States. Torres was enrolled in the school system in San Jose from 1991 until he was expelled in 2000. This expulsion resulted from Torres’s affiliation with the Sur Santos Pride gang, which he joined at age fourteen. Because of his gang involvement and attendant trouble at school, Torres’s parents sent him back to live in Mexico in 2002, when he was sixteen years old. After he reached adulthood, Torres attempted to unlawfully enter the United States three times in June 2005. During each of his first two attempts, Torres was apprehended and permitted to voluntarily return to Mexico. However, he successfully entered the United States unlawfully on the third attempt. Upon this reentry, Torres joined his family in San Jose and began working with his father in landscaping. In 2012, Torres married a United States citizen in San Jose. However, Torres never applied for legal status.

In March 2014, a citizen reported to the Los Gatos Police Department that there was a suspicious pickup truck in a nearby parking lot and that its driver might be attempting to sell a stolen bicycle. When officers arrived, the driver’s side door of the suspicious pickup was open. The officers found Torres working on something on the bed of the vehicle. Through the open driver’s side door, officers saw a backpack and what appeared to be counterfeit license plates. The bed of the pickup contained “a newer looking Trek road bike.” Torres told the officers that he owned the bicycle and that he had received it as a gift in December 2013. However, by reporting the bicycle’s serial number to dispatch, officers confirmed that it had been reported stolen two days earlier. When later confronted with this information, Torres admitted he knew the bicycle was stolen. Officers requested that Torres provide identification. Torres responded that it was in his vehicle. When Torres began to reach into the pickup to allegedly retrieve his identification, the officers stopped him out of concern for safety. An officer then looked into the vehicle and did not see any identification, but the officer asked if he could look inside Torres’s backpack. Torres consented. Inside the backpack, the officer found a loaded .22 caliber revolver, bolt cutters, and what appeared to be two homemade silencers for the firearm.

Upon this discovery, officers placed Torres under arrest. In addition to the contents of Torres’s backpack, the subsequent search of his vehicle revealed a small amount of methamphetamine and a glass pipe. Officers transported Torres to a holding facility where they explained his Miranda rights to him before conducting an interview. In response to questions about two of his tattoos that indicated a gang affiliation, Torres admitted to being an active member of Sur Santos Pride. According to Torres, the stolen bicycle and the backpack containing the firearm had been placed in his vehicle by a friend (a fellow gang member), whose identity Torres refused to reveal.”[ii]

Torres was subsequently indicated under federal law for being an unlawful alien in possession of a firearm in violation of 18 U.S.C. § 922(g)(5).  He filed a motion to suppress and argued that this statute violated the Second Amendment.  The district court denied his motion to suppress, and he was convicted.  He then appealed the denial of the motion to suppress to the Ninth Circuit Court of Appeals.

On appeal, Torres admits that he was unlawfully present in the United States and in possession of a firearm; rather, the basis of his appeals was his contention that the statute upon which he was convicted violates the Second Amendment.

At the outset, the court stated that they would assume without deciding, for the sake of this appeal, that the Second Amendment’s right to bear arms applied to unlawful aliens.

The court then set out to determine if the restriction on the Second Amendment caused by the statute at issue was permissible restriction.

The court then set out to determine what level of scrutiny to apply to the statute, first noting that they have previously held that laws that burden the Second Amendment must withstand more than the “rational basis” test, which is the lowest level of scrutiny. Therefore, the court stated they must decide whether to apply “intermediate scrutiny” or “strict scrutiny,” which is the most stringent standard.

The court noted that which level of scrutiny to apply depended on whether the statute impacted the “core of the Second Amendment right.”  The court stated

[District of Columbia v.] Heller tells us that the core of the Second Amendment is ‘the right of law-abiding, responsible citizens to use arms in defense of hearth and home.'” Chovan, 735 F.3d at 1138 (emphasis added) (quoting Heller, 554 U.S. at 635).[iii]

The court of appeals then held that the statute at issue in Torres’s case does not implicate the “core” of the Second Amendment because it impacts the rights of only those who are in the United States “illegally or unlawfully,” which is in contrast to the “law-abiding, responsible citizens” that the “core” of the Second Amendment protects.  As such, the court must apply the intermediate scrutiny test.

The court then set out to apply intermediate scrutiny to Torres case.  The court stated

For a challenged statute to survive intermediate scrutiny, it must have (1) a “significant, substantial, or important” government objective; and (2) a reasonable fit between that objective and the conduct regulated. Chovan, 735 F.3d at 1139. A statute need not utilize “the least restrictive means of achieving its interest” in order to withstand intermediate scrutiny. Fyock, 779 F.3d at 1000. Instead, the statute simply needs to “promote a ‘substantial government interest that would be achieved less effectively absent the regulation.'” Id. (quoting Colacurcio v. City of Kent, 163 F.3d 545, 553 (9th Cir. 1998)).[iv] [emphasis added]

As to the first prong of the intermediate scrutiny test, the court observed that there is an  “important government interest of ensuring the safety of both the public and its police officers.”[v]   Additionally, the court stated that armed, unlawful aliens could pose a threat to law enforcement officers who attempt to apprehend and remove them.   Further, the court noted that unlawful aliens are harder to trace and identify and often assume a false identity, which also strengthens the government’s interest in prohibiting them from possessing firearms.  As such, the ban on firearms is substantially related to the statutes general objectives since unlawful aliens are often able to evade detection by law enforcement.

Lastly, the court stated

[T]he government has a[] strong interest in preventing people who already have disrespected the law (including, in addition to aliens unlawfully in the country, felons, § 922(g)(1), fugitives, § 922(g)(2), and those convicted of misdemeanor crimes of domestic violence, § 922(g)(9)) from possessing guns.” Id. Section 922(g)(5) and other concurrent additions to § 922(g) “reflect[] Congress’s judgment that persons within these categories ‘may not be trusted to possess a firearm without becoming a threat to society.'” Binderup, 836 F.3d at 390 & n.98 (Fuentes, J., concurring in part and dissenting in part) (quoting Scarborough v. United States, 431 U.S. 563, 572 (1977)). “[T]hese restrictions . . . disarm groups whose members Congress believes are unable or unwilling to conduct themselves in conformity with the responsibilities of citizenship.” Id. at 390-91.[vi]

The court then upheld the statute at issue and stated that it survived intermediate scrutiny, and as such, upheld the denial of the motion to suppress.

In conclusion the court stated

The present state of the law leaves us unable to conclude with certainty whether aliens unlawfully present in the United States are part of “the people” to whom Second Amendment protections extend. Nonetheless, assuming that unlawful aliens do hold some degree of Second Amendment rights, those rights are not unlimited, and the restriction in § 922(g)(5) is a valid exercise of Congress’s authority.[vii]



[i] No. 15-10492 (9th Cir. Decided January 8, 2019)

[ii] Id. at 3-5

[iii] Id. at 17

[iv] Id. at 19

[v] Id.

[vi] Id. at 20-21

[vii] Id. at 21-22

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