Background
Diego Edgardo Aleman-Lozano, a citizen of El Salvador, entered the United States unlawfully but received a temporary nonimmigrant visa with work authorization in 2017. During a 2021 traffic stop in Pennsylvania, a state trooper saw a rifle cartridge on the passenger seat. A warranted search uncovered a pistol with no serial number and a loaded sixteen-round magazine.
A federal grand jury charged Aleman-Lozano under 18 U.S.C. § 922(g)(5)(B), which generally prohibits people admitted under nonimmigrant visas from possessing firearms or ammunition. After the district court rejected his facial Second Amendment challenge, he entered a conditional guilty plea preserving that issue for appeal and received a sentence of 24 months in prison followed by one year of supervised release.
The Court’s Holding
The Third Circuit affirmed, holding that § 922(g)(5)(B) does not violate the Second Amendment. The majority assumed without deciding that at least some noncitizens are among “the people” protected by the Second Amendment. It declined to define that phrase because doing so was unnecessary, could affect the interpretation of other constitutional provisions, and might overlook differences among categories of nonimmigrant visa holders.
Proceeding to the historical-tradition inquiry, the majority concluded that the statute is relevantly similar to English, colonial, Revolutionary-era, and Founding-era rules disarming people considered disloyal to the sovereign. In the court’s view, § 922(g)(5)(B) addresses the same allegiance concern and imposes a comparable burden: nonimmigrant visa holders retain presumptive allegiance to another sovereign, while naturalization and its oath of allegiance provide a congressionally prescribed path to firearm rights. Judge Phipps concurred only in the judgment, reasoning that the facial challenge failed at the textual stage because at least some covered people—such as short-term C-1 transit-visa holders—are not part of the national political community.
Key Takeaways
- The Third Circuit upheld 18 U.S.C. § 922(g)(5)(B) against a facial Second Amendment challenge.
- The majority assumed without deciding that at least some noncitizens fall within “the people” protected by the Second Amendment.
- The majority found a sufficient historical analogue in laws disarming people who had not demonstrated allegiance to the governing sovereign.
- The concurrence would have rejected the facial challenge at the first Bruen step because the statute has at least some constitutional applications.
Why It Matters
The precedential decision confirms within the Third Circuit that the federal firearm prohibition for nonimmigrant visa holders survives the Supreme Court’s historical-tradition test. It also leaves unresolved the broader question whether, and under what circumstances, noncitizens are among “the people” protected by the Second Amendment.
The divided reasoning highlights two routes for rejecting broad facial challenges to status-based firearm restrictions: finding a historical tradition supporting the restriction or identifying at least one covered category outside the Second Amendment’s protection.