{"id":200,"date":"2019-01-09T17:12:00","date_gmt":"2019-01-09T17:12:00","guid":{"rendered":"https:\/\/onlygunsandmoney.com\/2019\/01\/09\/us-v-torres-do-unlawful-aliens-have\/"},"modified":"2019-08-16T18:29:46","modified_gmt":"2019-08-16T18:29:46","slug":"us-v-torres-do-unlawful-aliens-have","status":"publish","type":"post","link":"https:\/\/onlygunsandmoney.com\/?p=200","title":{"rendered":"US V. Torres &#8211; Do &#8220;Unlawful Aliens&#8221; Have The Right To Possess Firearms?"},"content":{"rendered":"<div class='__iawmlf-post-loop-links' style='display:none;' data-iawmlf-post-links='[{&quot;id&quot;:6521,&quot;href&quot;:&quot;https:\\\/\\\/abc7news.com\\\/news\\\/alleged-members-of-san-jose-based-gang-indicted\\\/10579&quot;,&quot;archived_href&quot;:&quot;&quot;,&quot;redirect_href&quot;:&quot;&quot;,&quot;checks&quot;:[],&quot;broken&quot;:false,&quot;last_checked&quot;:null,&quot;process&quot;:&quot;done&quot;},{&quot;id&quot;:6522,&quot;href&quot;:&quot;https:\\\/\\\/www.oyez.org\\\/cases\\\/1989\\\/88-1353&quot;,&quot;archived_href&quot;:&quot;https:\\\/\\\/web-wp.archive.org\\\/web\\\/20250608224632\\\/https:\\\/\\\/www.oyez.org\\\/cases\\\/1989\\\/88-1353&quot;,&quot;redirect_href&quot;:&quot;&quot;,&quot;checks&quot;:[{&quot;date&quot;:&quot;2026-04-17 15:30:26&quot;,&quot;http_code&quot;:206}],&quot;broken&quot;:false,&quot;last_checked&quot;:{&quot;date&quot;:&quot;2026-04-17 15:30:26&quot;,&quot;http_code&quot;:206},&quot;process&quot;:&quot;done&quot;},{&quot;id&quot;:5009,&quot;href&quot;:&quot;https:\\\/\\\/www.supremecourt.gov\\\/opinions\\\/07pdf\\\/07-290.pdf&quot;,&quot;archived_href&quot;:&quot;&quot;,&quot;redirect_href&quot;:&quot;&quot;,&quot;checks&quot;:[],&quot;broken&quot;:false,&quot;last_checked&quot;:null,&quot;process&quot;:&quot;done&quot;},{&quot;id&quot;:6523,&quot;href&quot;:&quot;http:\\\/\\\/cdn.ca9.uscourts.gov\\\/datastore\\\/opinions\\\/2019\\\/01\\\/08\\\/15-10492.pdf&quot;,&quot;archived_href&quot;:&quot;https:\\\/\\\/web-wp.archive.org\\\/web\\\/20250910191421\\\/https:\\\/\\\/cdn.ca9.uscourts.gov\\\/datastore\\\/opinions\\\/2019\\\/01\\\/08\\\/15-10492.pdf&quot;,&quot;redirect_href&quot;:&quot;&quot;,&quot;checks&quot;:[{&quot;date&quot;:&quot;2026-04-17 15:30:34&quot;,&quot;http_code&quot;:206}],&quot;broken&quot;:false,&quot;last_checked&quot;:{&quot;date&quot;:&quot;2026-04-17 15:30:34&quot;,&quot;http_code&quot;:206},&quot;process&quot;:&quot;done&quot;}]'><\/div>\n<p>\nDoes an illegal alien, unlawful alien, undocumented immigrant, or whatever your favorite term for those in this immigration class have the right to possess a firearm under the Second Amendment? Five circuit courts have said no and now the 9th Circuit Court of Appeals in an unanimous decision agrees in a decision released yesterday. They have all found that&nbsp;18 U.S.C. \u00a7 922(g)(5)(A) is constitutional.<\/p>\n<p>Some quick background on Victor Manuel Torres. He was born in Mexico and was brought to the San Jose, California area when he was four years old in 1989. Neither of his parents had legal immigration status. Notwithstanding that, he was enrolled in the San Jose school system until he was expelled in 2000 for gang membership in the <a href=\"https:\/\/abc7news.com\/news\/alleged-members-of-san-jose-based-gang-indicted\/10579\/\" target=\"_blank\" rel=\"noopener\">Sur Santos Pride<\/a> gang. A couple of years later he was sent to live with relatives in Mexico to get his act together. In 2005, he made three attempts to illegally enter the United States. The first two times he was caught and allowed to voluntarily return to Mexico. His third attempt was successful and he returned to live in the San Jose area. He married a US citizen in 2012 but made no attempt to apply for legal status. So you have a person who is in the United States unlawfully, did not have a right to legal status due to his parents, and who made no effort to change his status after his marriage to a US citizen.<\/p>\n<p>In 2014, Torres was arrested when attempting to sell a stolen bicycle by the Los Gatos Police Department. When he consented to allow officers to look in his backpack for identification, they found a loaded .22 revolver, bolt cutters, and two homemade suppressors. In addition to state criminal charges, Torres was indicted and convicted on one count of being an unlawful alien in possession of a firearm in violation of&nbsp;18 U.S.C. \u00a7 922(g)(5)(A). He moved to dismiss this charge on the basis that the Second Amendment protections applied to him and that \u00a7 922(g)(5)(A) violated the Second Amendment. The District Court disagreed and after trial sentenced him to 27 months in prison with three years probation. He then appealed to the 9th Circuit.<\/p>\n<p>The 9th Circuit used a two-step inquiry to see if \u00a7 922(g)(5)(A) was unconstitutional both facially and as applied to Torres. The inquiry sought to determine whether the law burdened the Second Amendment and then. if so, the proper level of scrutiny. Noting that the 4th, 5th, 7th, 8th, and 10th Circuits had dealt with this question they proceeded to examine those cases. The key issue was whether &#8220;the people&#8221; in the Second Amendment was meant to apply to those illegally in the United States.<\/p>\n<p>The two cases that all six of the circuits used to determine &#8220;the people&#8221; were <i><a href=\"https:\/\/www.oyez.org\/cases\/1989\/88-1353\" target=\"_blank\" rel=\"noopener\">US v Verdugo-Urquidez<\/a><\/i> (1990) and <i><a href=\"https:\/\/www.supremecourt.gov\/opinions\/07pdf\/07-290.pdf\" target=\"_blank\" rel=\"noopener\">DC v Heller<\/a><\/i> (2008). The first case said &#8220;the people&#8221; in the Bill of Rights were those in a class of persons who are a) part of a national community and b) who have developed a sufficient connection with this country to be considered part of it. Likewise, the Heller case emphasized the Second Amendment as &#8220;protecting the rights of citizens&#8221; and &#8220;belonging to all Americans&#8221;. It went on to use the terms &#8220;law-abiding&#8221; and &#8220;responsible&#8221; in reference a citizen&#8217;s right to use arms in defense of their home. The five other circuits had all agreed that \u00a7 922(g)(5)(A) was constitutional but disagreed on the reasoning.<\/p>\n<p>The 4th, 5th, and 8th Circuits found that unlawful aliens (the preferred term of the 9th Circuit) were not members of the law-abiding community per Heller and thus not entitled to be &#8220;the people&#8221; under the Second Amendment. Conversely, the 7th and 10th agreed that Heller was not conclusive on who should be considered &#8220;the people&#8221; as that was only secondary to whether it was an individual or collective right. They thus relied upon Verdugo-Urquidez to determine that those in question were &#8220;the people&#8221; or assumed to be. However, under intermediate scrutiny their exclusion from Second Amendment rights was allowed because it did not severely burden that right.<\/p>\n<p>The 9th Circuit decided that:<\/p>\n<blockquote class=\"tr_bq\"><p>\n<i>However, we agree with the Tenth Circuit\u2019s approach,<br \/>\nbecause we believe the state of the law precludes us from<br \/>\nreaching a definite answer on whether unlawful aliens are<br \/>\nincluded in the scope of the Second Amendment right. The<br \/>\nTenth Circuit correctly held that this question is \u201clarge and<br \/>\ncomplicated.\u201d Id. at 1169. Therefore, on this record, <b>we find<br \/>\nit imprudent to examine whether Torres (as an unlawful alien)<br \/>\nfalls within the scope of the Second Amendment right. As<br \/>\nsuch, we assume (without deciding) that unlawful aliens, such<br \/>\nas Torres, fall within the scope of the Second Amendment<br \/>\nright<\/b> as articulated under <\/i>Heller <i>and <\/i>Vergudo-Urquidez<i> and<br \/>\nproceed to the appropriate scrutiny we should give to<br \/>\n\u00a7 922(g)(5).<\/i><\/p><\/blockquote>\n<p>The court then had to decide whether \u00a7 922(g)(5)(A) imposed a permissible restriction on Torres&#8217; Second Amendment right and what was proper level of scrutiny. Torres argued for strict scrutiny but the court disagreed.<\/p>\n<blockquote class=\"tr_bq\"><p>\n<i>However, intermediate scrutiny is<br \/>\nappropriate \u201cif a challenged law does not implicate a core<br \/>\nSecond Amendment right, or does not place a substantial<br \/>\nburden on the Second Amendment right.\u201d <\/i>Jackson<i>, 746 F.3d<br \/>\nat 961. Although not dispositive of the question, we note that<br \/>\nthere has been <b>\u201cnear unanimity in the post-Heller case law<br \/>\nthat, when considering regulations that fall within the scope<br \/>\nof the Second Amendment, intermediate scrutiny<\/b> is<br \/>\nappropriate.\u201d <\/i>Silvester<i>, 843 F.3d at 823.<\/i><\/p><\/blockquote>\n<p>Here I might say that the &#8220;near unanimity&#8221; is due more to resistance by the lower courts to <i>Heller <\/i>and <i>McDonald <\/i>than to true constitutional jurisprudence.&nbsp; The court goes on to decide that the severity of the law&#8217;s burden on Torres&#8217; right is tempered. That is due to the fact that the prohibition on an unlawful alien&#8217;s possession of a firearm does not continue once he or she has left the United States. Moreover, if an unlawful alien was to acquire lawful immigration status the prohibition in \u00a7 922(g)(5)(A) would be removed.<\/p>\n<p>The court agreed with the government&#8217;s contention that \u00a7 922(g)(5)(A) had an important governmental objective and that it was a reasonable fit between the objective and the conduct regulated. The primary objective is crime control and public safety. Armed unlawful aliens are a threat to immigration officers, they purposefully seek to avoid detection by often adopting false identities or staying outside the formal system of identification, and have already shown a willingness to disobey the United States&#8217; law on immigration.<\/p>\n<p>They conclude:<\/p>\n<blockquote class=\"tr_bq\"><p>\n<i>The present state of the law leaves us unable to conclude<br \/>\nwith certainty whether aliens unlawfully present in the United<br \/>\nStates are part of \u201cthe people\u201d to whom Second Amendment<br \/>\nprotections extend. Nonetheless, assuming that unlawful<br \/>\naliens do hold some degree of Second Amendment rights, those rights are not unlimited, and the restriction in<br \/>\n\u00a7 922(g)(5) is a valid exercise of Congress\u2019s authority.<\/i><\/p><\/blockquote>\n<p>They thus affirm the lower court&#8217;s ruling that \u00a7 922(g)(5)(A) is constitutional.<\/p>\n<p>The opinion was written by Circuit Judge N. Randy Smith. He was joined in the opinion by Chief Judge Sidney Thomas and US District Judge Sharon Gleason who was sitting by designation.<\/p>\n<p>The full text of the opinion is <a href=\"http:\/\/cdn.ca9.uscourts.gov\/datastore\/opinions\/2019\/01\/08\/15-10492.pdf\" target=\"_blank\" rel=\"noopener\">here<\/a>.<\/p>\n<div style=\"margin-top: 0px; margin-bottom: 0px;\" class=\"sharethis-inline-share-buttons\" ><\/div>","protected":false},"excerpt":{"rendered":"<p>Does an illegal alien, unlawful alien, undocumented immigrant, or whatever your favorite term for those in this immigration class&hellip;<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"iawp_total_views":2,"footnotes":""},"categories":[1],"tags":[483,484,485,19,486],"class_list":["post-200","post","type-post","status-publish","format-standard","hentry","category-uncategorized","tag-18-u-s-c--922g5a","tag-9th-circuit","tag-illegal-aliens","tag-second-amendment","tag-us-v-torres"],"_links":{"self":[{"href":"https:\/\/onlygunsandmoney.com\/index.php?rest_route=\/wp\/v2\/posts\/200","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/onlygunsandmoney.com\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/onlygunsandmoney.com\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/onlygunsandmoney.com\/index.php?rest_route=\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/onlygunsandmoney.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=200"}],"version-history":[{"count":1,"href":"https:\/\/onlygunsandmoney.com\/index.php?rest_route=\/wp\/v2\/posts\/200\/revisions"}],"predecessor-version":[{"id":11671,"href":"https:\/\/onlygunsandmoney.com\/index.php?rest_route=\/wp\/v2\/posts\/200\/revisions\/11671"}],"wp:attachment":[{"href":"https:\/\/onlygunsandmoney.com\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=200"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/onlygunsandmoney.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=200"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/onlygunsandmoney.com\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=200"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}