Litigation Highlight: Western District of Texas Judge Strikes Down the Alien-in-Possession Ban

This guest post does not necessarily represent the views of the Duke Center for Firearms Law.

On December 11, the Western District of Texas struck down 18 U.S.C. § 922(g)(5), the illegal alien firearms prohibitor, in United States v. Sing-Ledezma.[1] The case is the latest of many decisions invalidating various prohibited-person restrictions in the wake of Bruen (chief among them United States v. Rahimi, which the Supreme Court is currently considering). Section 922(g)(5) states in relevant part that “[i]t shall be unlawful for any person . . . who, being an alien is illegally or unlawfully in the United States . . . to possess in or affecting commerce, any firearm or ammunition.” Prior to Sing-Ledezma, every federal district and circuit court to consider the prohibition under Bruen upheld the statute. In United States v. Sitladeen, the Eight Circuit, thus far the only court of appeals to address the issue, upheld Section 922(g)(5) on the grounds that illegal aliens are not part of “the people” with Second Amendment rights and thus did not qualify for its protections. Sing-Ledezma reached a contrary result due primarily to two major differences in how the court applied Bruen.

First, Bruen “step one” directs courts to determine if the defendant’s “conduct” falls within the purview of the Second Amendment. Courts have struggled with what exactly the relevant “conduct” is for purposes of the historical-analogical test. In Sing-Ledezma, the government argued that the conduct at issue was being an “unlawfully present alien in possession of a firearm.” This status-based distinction had been utilized previously to uphold the statute, including in Sitladeen. Here, however, the court rejected such an argument. Instead, citing Fifth Circuit precedent, it determined that any attempt to expand the scope of the “conduct” beyond mere possession of a firearm was “unavailing.” Thus, Sing-Ledezma found the conduct “plainly protected by the Second Amendment.”

Second, the way the Sing-Ledezma court conducted its historical analysis differed greatly from other courts. Before exploring that difference, it is worth discussing why historical analysis is particularly difficult when it comes to 922(g)(5). Bruen directs courts to consider why and how firearms were restricted in the Founding and Reconstruction eras. But modern immigration law did not come into existence until the late nineteenth century. Further, historical laws restricting African Americans, Native Americans, Catholics, and other disfavored groups from possessing firearms due to the belief that these groups were outside the political community might be promising analogues. But these laws were motivated by racism and discrimination, and courts are divided on whether they can be relied upon to support modern gun regulation. These factors make it hard for a court to settle on a historical analogue. 

Additionally, courts can conduct the historical analysis at either step of the Bruen inquiry. Whether illegal aliens are included in the Second Amendment’s “people” is a question unique to 922(g)(5). In most cases, like Rahimi, there is little discussion on this issue—it is almost taken as a given that the defendant is within “the people.” Because illegal aliens are not citizens, there is a stronger argument that they are not within the scope of the Second Amendment at all, thus ending the analysis at Bruen step one. But this first step “plain text” analysis also requires historical analysis. According to Professor Pratheepan Gulasekaram, “at either stage of the inquiry . . .  the same historical evidence would motivate decisions to exclude noncitizens . . . allowing courts to pick and choose relevant antecedents to justify exclusion at either stage of the Bruen inquiry.” Likewise, the court in Sing-Ledezma noted that “the step zero analysis and the step two analysis are functionally identical, collapsing into a single inquiry.”[2] Thus, on top of what history to use in the Bruen test, how to use it is also not entirely clear.

Before turning to the court’s analysis, it is worth nothing one aspect of Sing-Ledezma that is particularly unique: its treatment of pre-Bruen circuit precedent. Usually, courts post-Bruen have relied on pre-Bruen caselaw to the extent those cases did not use means-end scrutiny. For example, in Sitladeen, the Eighth Circuit heavily relied on its pre-Bruen holding in United States v. Flores. The judges determined that Flores controlled the outcome because that case relied on a purely textual-historical analysis. The Fifth Circuit, by contrast, has explicitly abrogated pre-Bruen precedent. Indeed, in Rahimi, the court ruled that all pre-Bruen Second Amendment precedent was “obsolete.” Like the Eighth Circuit, the Fifth Circuit had upheld 922(g)(5) before Bruen was decided in a 2011 decision in United States v. Portillo-Munoz which held that “the phrase ‘the people’ in the Second Amendment of the Constitution does not include aliens illegally in the United States.” Following the Fifth Circuit’s lead, Sing-Ledezma rejected any reliance on Portillo-Munoz as “unavailing.”

Sing-Ledezma also criticized other courts for “rel[ying] reflexively on pre-Bruen caselaw or . . . loose analogies.” Most courts that have reached Bruen step two in 922(g)(5) cases have found colonial-era laws preventing individuals who did not swear an oath of allegiance from possessing or bearing arms to be sufficiently similar to (g)(5) to satisfy Bruen. For example, one court explained that “the current immigration laws are the imperfect system the United States has set up as a proxy for national allegiance.” Another concluded that “the rights of those who lack an undivided allegiance to the United States . . . have been circumscribed since the Founding Era of this country.” Other frequently cited laws include those that prohibited Native Americans and Catholics from possessing firearms.

Sing-Ledezma is different. To start, the court conducted one of the most in-depth historical analyses done by a court analyzing 922(g)(5) since Bruen. From my research, it is the first court to look outside of the typically proffered historical record and consult sources like state ratification convention proposals and state constitutional provisions. But the analysis is unique as well. Rather than looking purely for a historical analogue, the court focused on another part of Bruen. It considered “whether the problem motivating the law’s enactment was a problem that existed at the founding.” If so, Bruen says that “the lack of a distinctly similar historical regulation addressing that problem is relevant evidence that the challenged regulation is inconsistent with the Second Amendment.” While admitting that the notion of illegal immigration did not exist at the Founding, Sing-Ledezma determined that, even then, there was a concern about “unknown foreigners stepping onto American soil, potentially with firearms.” Section 922(g)(5) addresses this same issue—thus, Sing-Ledezma found that the lack of Founding-era law was relevant evidence of unconstitutionality. 

Turning to the government’s proffered historical analogues, the court found insufficient historical support. The government pointed to a variety of colonial and reconstruction era history, including statements made during state conventions to ratify the Constitution, state constitutional provisions, and militia citizenship restrictions. Perhaps most significantly, the court rejected analogies to laws prohibiting Native Americans, Catholics, and Loyalists from possessing guns which, as noted above, have frequently been relied about to uphold the statute. The laws regarding Native Americans and Catholics are pre-Founding, meaning that they are British, rather than American laws. The Native American and Catholic restrictions cited in Sing-Ledezma were passed in 1648 and 1756 respectively. The Court in Bruen cautioned against relying solely on English law because “[h]istorical evidence that long predates [the Founding] may not illuminate the scope of the right.” 

Regarding the Native American bans, the court found them distinguishable because they did not match the “how” and the “why” of Section 922(g)(5). Specifically, the Native American laws were passed during a time when there were ongoing hostilities between Native Americans and colonists. Therefore, the Native American laws were a wartime measure designed to disarm enemy combatants. On the other hand, Section 922(g)(5) was not motivated by such wartime concerns and is instead a crime control measure. Similarly, the “how” does not match. The Native American laws prohibited colonists from providing Native Americans with guns, ammunition, or gunpowder. Conversely, Section 922(g)(5) is a ban on illegal immigrants possessing guns themselves. 

The anti-Catholic laws failed for the same reason, under the court’s analysis. Like the conflict with Native Americans, the Protestant colonial government in Virginia was worried about a Catholic revolt. A British law “required all those claiming membership in the British politic to swear allegiance to the Hanoverian dynasty and to the Protestant succession and to swear an oath abjuring the ecclesiastical authority of the Pope.” The colonial Virginia law “ordered the disarmament of all those” refusing to do so.  Again, this motivation was sufficiently dissimilar to 922(g)(5), due to the presence of a particularized and imminent danger. Likewise, the Catholic ban was also not absolute. If a Catholic swore allegiance to the Protestant succession, he was allowed to keep his arms. 922(g)(5), however, is an absolute ban with no such exception. 

Finally, the court rejected an analogy to the disarmament of British Loyalists who refused to swear allegiance to the United States during and immediately following the Revolutionary War. Post-Bruen, these colonial laws have been relied upon most frequently to uphold 922(g)(5). However, the Sing-Ledezma court disagreed, largely for the same reasons it rejected the previously discussed laws. Specifically, while the “how” matched, the why did not, since the laws were both outright bans. Loyalty-oath requirements were passed in reaction to a particularized threat: “efforts to overthrow the newly established American government.” Finding no sufficient analogue, the court struck down 922(g)(5) as unconstitutional.

While (g)(5) presents unique analytical challenges, the methodological issues in Sing-Ledezma have frustrated courts in many other post-Bruen cases. Take, for example, questions of generality. Sing-Ledezma looked at the “how” and “why” of both 922(g)(5) and the proffered historical analogies extremely narrowly. Since the modern and historical laws did not align exactly on the relevant metrics, the historical laws were not sufficiently analogous. Conversely, for other courts, the fact that “an early feature of the emerging republic” was the selective “disarmament of groups associated with foreign elements” was enough to uphold the statute. These generality questions were explicitly discussed by Solicitor General Elizabeth Prelogar at oral argument in Rahimi. Specifically, she criticized courts for finding “minute difference[s] between how [a] regulation operated in 1791” and how a modern law operates, and she argued that this approach “comes very close to requiring [] a dead ringer when Bruen itself said that’s not necessary.” 

Irrespective of the historical analysis, the court’s reasoning at the predicate step, I think, has a gaping hole. Much of the decision is based upon an assumption that concerns about foreigners stepping onto American soil are not new, and, therefore, the absence of similar historical laws renders (g)(5) unconstitutional. Indeed, that assumption is what framed the court’s analysis of the government’s proffered historical analogues. This assumption is made despite the fact that government regulation of immigration, much less the notion of illegal immigration, did not exist when the Second Amendment was ratified. The court acknowledged as much and even commented that, “when the Second Amendment was ratified in 1791, there had been and continued to be a large influx of foreigners coming to the United States without having been previously vetted and without having their belongings searched or weapons seized.” Immigration is therefore unlike domestic violence, which was undoubtedly a societal problem that the American people faced at the Founding. The lack of a codified immigration system, then, indicates that Americans at the Founding did not consider immigration, specifically the vetting of immigrants, to be “a general societal problem.” The court instead seemed to assume a general continuity of concern about foreigners entering the United States, a reading I don’t fully grasp. 

This reasoning, of course, also presumes that Founding-era history best informs our understanding of the Second Amendment. Justice Thomas suggested in Bruen that Reconstruction-era history could also aid in interpreting the Second Amendment. Using this later time period as a reference might change the analysis. For example, the Page Act of 1875 restricted the immigration of Asian, mostly Chinese, women who were considered “undesirable.” The Chinese Exclusion Act followed a few years later, in 1882. These laws could be stronger evidence of a general societal concern surrounding immigration, lending more credence to the absence of firearm-specific regulation.  The government has appealed Sing-Ledezma to the Fifth Circuit, so we haven’t yet seen the end of the case. 

[1] Sing-Ledezma also addressed, and dismissed, a challenge to 18 U.S.C. § 922(k), which outlaws the possession of firearms with obliterated serial numbers. The court said the statute passed Bruen “step one” because firearms with obliterated serial numbers are not in “common use for lawful purposes.”  At step two, the government cited laws regulating “the manufacture, inspection, making, and transportation of gunpowder and firearms.”  The court found those laws to be sufficient analogues.

[2] The Sing-Ledezma court labeled the initial threshold question—whether the defendant was included in “the people” —step zero. Other courts, like Sitladeen, call this inquiry “step one.”