Unlawfully present individuals possessing a firearm (18 USC § 922(g)(5)(A)); Facial & as-applied challenges based on the Second Amendment; United States ex rel Turner v Williams; Whether the firearm regulation at issue was consistent with the nation’s “historical tradition” of firearm regulation; New York State Rifle & Pistol Ass’n v Bruen

The court held that the Second Amendment’s reference to the right of “the people” to bear arms encompasses unlawfully present individuals who have “sufficient connections to the national community[.]” But because unlawfully present individuals such as defendant-Escobar-Temal’s “ status inherently lacks a relationship with the United States government[,]” his facial and as-applied challenges to his conviction under § 922(g)(5)(A) failed. He entered this country illegally from Guatemala. After his motion to dismiss based on the Second Amendment was denied, he pled guilty to violating § 922(g)(5)(A), which prohibits unlawfully present individuals from possessing a firearm. He argued that the Second Amendment’s reference to “the people” would encompass unlawfully present individuals, and that § 922(g)(5)(A) is unconstitutional facially and as applied to him. The court first noted that the right to bear arms is not “unlimited.” Applying the Bruen framework, it noted that its “precedent suggests that those who have developed sufficient connections to this country include at least some unlawfully present individuals.” It held that “[a] historical analysis of ‘the people’ confirms that the term includes U.S. citizens as well as those with sufficient connections to the country that they are considered part of the national community.” Examining Escobar-Temal’s connections, the court noted that “he was part of the national community given that he voluntarily moved here, has no criminal convictions, held a job, and established a family.” Thus, it concluded that the Second Amendment applied. But it also considered the history and tradition supporting the disarming of “noncitizens and other political or demographic groups seen as lacking a regulable relationship to the government.” It concluded that “allowing unlawfully present individuals to be armed could be dangerous because such individuals can more easily circumvent important firearm safety laws. That rationale is well founded in the nation’s history and tradition of firearms regulation.” Thus, his facial challenge failed. He also claimed that the statute should not apply to him where “he is not individually dangerous.” The court again returned to the history that supported the “conception of the relationship with the state as a litmus test that applies even to law-abiding nonviolent individuals.” Although Escobar-Temal may not be dangerous, “his lack of relationship with the government as an unlawfully present individual renders it reasonable for the government to disarm him in the same way that, in 1777, it could disarm a peaceable Quaker or loyalist.” Affirmed.