U.S. Attorney’s Office Urges First Circuit To Deny Gun Rights To Noncitizens

On May 8, the First Circuit Court of Appeals was asked to consider a case in which a Dominican migrant living in Puerto Rico was convicted under the Gun Control Act of 1968 (GCA), prohibiting noncitizens from possessing firearms. At the heart of the case, the First Circuit will need to decide whether or not immigrants lacking permanent legal status are part of “the people” Constitutionally protected by the Second Amendment.

Moreno Vizcaíno-Peguero, a Dominican migrant currently residing in Puerto Rico, was convicted in 2023 under the GCA. However, he claims the ruling runs afoul of the 2022 landmark Supreme Court decision in New York State Rifle & Pistol Association Inc. v. Bruen, as it constitutes “a complete and absolute ban on firearm possession without a particularized or individualized determination of dangerousness or untrustworthiness,” ignoring the Bruen Standard, which requires the government affirmatively demonstrate that a firearm regulation is consistent with the historical tradition of firearm regulation.

Now on appeal from the U.S. District Court for the District of Puerto Rico, Vizcaíno-Peguero is arguing that 18 U.S.C. § 922(g)(5) should be overturned, because he says that although Bruen did not address the meaning of “the people,” its test should apply to immigrants without permanent legal status because the Supreme Court has utilized an inclusive interpretation of “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… Therefore, persons, or human beings, physically present in the United States were, and are, entitled to firearm possession,” according to a brief filed by Moreno Vizcaíno-Peguero’s attorneys.

Jackson Boyd Whetsel, Vizcaíno-Peguero’s federal public defender, conceded during oral arguments that his client’s presence as an illegal immigrant was unlawful, “but it’s not a crime,” and argues that the Supreme Court has recognizes 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.”

“And he was otherwise doing the right things, otherwise existing legally, not breaking other laws… And he was doing the right thing in trying to become a citizen, to gain some status,” Whetsel argued. 

The government, however, argues that Vizcaíno-Peguero, as an unlawful alien, is not part of “the people” and therefore is not protected under the Second Amendment, pointing out that even if he were, the prohibition would succeed in satisfying the Bruen test.  

“And even if he were, prohibiting unlawful aliens from possessing firearms is consistent with this nation’s historical tradition of firearm regulation,” according to the U.S. Attorney’s Office.

The government further argues that disarming noncitizens 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,” instead pointing out that “the statute fits squarely within a historical tradition that limited Second Amendment rights to law-abiding citizens.”

To make this argument, the US Attorney’s office cites colonial era antecedents for disarming noncitizens, including prohibitions on arming Native Americans, Catholics whose allegiance had not been sworn, and the disarming of loyalists and those who refused to swear allegiance.

The three-judge panel did not rule from the bench; however, comments from Chief U.S. Judge David Barron of the United States Court of Appeals for the First Circuit indicate that a ruling favoring the government’s argument may be forthcoming.

“[N]ot 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… 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,” according to Chief U.S. Judge David Barron of the United States Court of Appeals for the First Circuit.

Barron, an Obama appointee, was joined on the panel by George W. Bush appointee, Jeffrey Howard, and Biden appointee, Lara Montecalvo.

The embarrassing Rahimi decision, upholding a federal law that prohibits individuals subject to domestic violence restraining orders from possessing firearms, clearly violates both the right to bear arms and the right to due process. In many circumstances, domestic violence restraining orders are utilized in civil proceedings like family court, in which one party uses such an order to gain a tactical advantage over their spouse for purposes of property division and child custody. In many cases, actual violence does not even need to be present. For example, in California, the standard can be the destruction of the other party’s mental or emotional calm. You see where that’s going. 

In light of that and the influx of migrants crossing the border illegally, with many committing heinous crimes across the country, being present in the United States illegally is not a violation I’m likely to have much sympathy for.

The Supreme Court has already established, in an abundance of foolish virtue signaling, that Americans can lose their Second Amendment rights without having to violate the law, so I don’t see why we would arm those whose presence alone challenges the sovereignty of our borders and our immigration laws. A person should demonstrate respect for the laws of our country before demanding that its Constitution protect them.

I know this would disqualify many politicians, judges, and most Democrats, depending on how you look at it, but we’re really just splitting hairs anyway, as only remnants of the Second Amendment remain thanks to leftists and the unwillingness of the Supreme Court to keep their oath.