For Immigrants, Gun Rights Debate Goes Beyond Firearms

By Marco Poggio | January 19, 2024, 8:35 PM EST ·

people waiting in line outside of a gun store

A line outside a gun store in Culver City, California, in March 2020. As the U.S. Supreme Court has expanded gun rights in recent years, a string of new legal challenges have cropped up in lower courts to a long-standing federal statute barring noncitizens from possessing firearms. (AP Photo/Ringo H.W. Chiu, File)

When cops stopped Antonio Sing-Ledezma's car following a shooting outside El Paso, Texas, in March and asked him if he had anything illegal on him, he didn't mention the handgun with the scratched-off serial number hidden in the vehicle.

Sing-Ledezma, who did admit to having some marijuana and a glass pipe in his jacket pocket, told the officers that he had just been shot. When they asked him who pulled the trigger, however, he became uncooperative. A subsequent search of his vehicle turned up the weapon.

A Mexican citizen wanted for murder in his home country who'd previously been deported from the U.S., Sing-Ledezma was ultimately charged under a federal law prohibiting noncitizens from possessing firearms.

But in the face of the U.S. Supreme Court's June 2022 ruling in New York State Rifle & Pistol Association Inc. v. Bruen expanding gun rights, Sing-Ledezma argued that the Second Amendment allows undocumented people like him to possess weapons in self-defense, and challenged the so-called alien-in-possession statute as unconstitutional.

And last month, U.S. District Judge Kathleen Cardone of the Western District of Texas agreed with him. For the first time, a federal court found that the statute — Section 922 (g)(5)(A) of Title 18 of the U.S. Code — violated the Second Amendment.

Quoting Bruen, the judge deemed the law "facially unconstitutional" and "an outlier that our ancestors would never have accepted."

The U.S. government appealed the order to the U.S. Court of Appeals for the Fifth Circuit, the same court that last year found another federal gun law — one prohibiting possession by people who are the subject of domestic violence restraining orders — unconstitutional. That case, United States v. Rahimi, has been argued before the Supreme Court and a decision is pending.

Sing-Ledezma's is one of at least 16 legal challenges to the law since Bruen held that people have a right to carry firearms in self-defense in public. So far, however, he's the only one who's been able to convince a federal court to strike down the ban.

The crossroads between gun rights and immigration status is one that's rife with political and ideological tension, and legal scholars see it as one that could soon get renewed attention from U.S. courts of appeal, and, eventually, land before the Supreme Court.

It's also an issue that experts say carries implications that go far beyond the scope of the Second Amendment.

"If you start to create exceptionalism with regards to immigrants in the Second Amendment arena, what is the logic that stops that general exceptionalism from being applied in other constitutional areas?" Pratheepan Gulasekaram, a University of Colorado Law School professor who has done extensive research on the interplay between gun rights and immigration status, told Law360.

The fight over gun rights for noncitizens could spill over into other legal contexts and erode constitutional protections that have so far been afforded to immigrants, he said. For example, in two Supreme Court cases during the Trump administration, the government challenged the ability of noncitizens to invoke First Amendment, due process and habeas corpus protections.

Challenges to the Alien-in-Possession Statute Since Bruen

Since the U.S. Supreme Court expanded gun rights with the Bruen decision in June 2022, federal district courts have weighed in on the constitutionality of the provision banning non-U.S. citizens from possessing firearms at least 16 times. Only the Western District of Texas, in the case United States v. Sing-Ledezma, found the law to be in violation of the Second Amendment. An appeal of the decision is now pending before the Fifth Circuit.

Legal status
 District court found the law constitutional  District court found the law constitutional. The case was appealed.   District court found the law unconstitutional. The case was appealed. 
Case Case name District court District case number District court opinion date Circuit court jurisdiction Circuit case number Circuit court opinion date Facts and allegations about defendant District court's Bruen test application Quotes from district court opinion Circuit court's Bruen test application Quotes from circuit court opinion Did Bruen change who counts as "The people"? Constitutional?
Source: Law360 analysis of court dockets

Who Counts as 'the People'?

Every morning before school began, Oscar Vazquez-Ramirez used to salute the American flag and pledge allegiance to the United States. At every soccer game and school assembly, he stood and sang the national anthem.

But his loyalty didn't help him after he was caught with a gun during a traffic stop in December 2021 and charged under the alien-in-possession statute.

"I love this country and consider it my home," he said in a court filing. "When I sing the national anthem it comes from my heart."

Brought to the United States at age 7 and raised undocumented in Othello, a small town in eastern Washington, Vazquez-Ramirez now faces a 10-year sentence and deportation if convicted.

Like Sing-Ledezma, Vazquez-Ramirez has argued that the alien-in-possession statute should be declared unconstitutional. Last week, however, Senior U.S. District Judge Rosanna Malouf Peterson of the Eastern District of Washington disagreed.

In her order, Judge Peterson said the alien-in-possession statute should be viewed differently from other federal gun laws because it deals with immigration status, an area the U.S. government has wide power to regulate.

"The differential treatment of unlawfully present noncitizens based upon their status as unlawful and not law-abiding is reasonable and not arbitrary," the judge said in the order. John B. McEntire IV, a federal public defender representing Vazquez-Ramirez, declined to comment on the case, but said he planned to appeal.

Gulasekaram, who testified as an expert in Vazquez-Ramirez's case in December, said Judge Peterson's reasoning could be used to legally justify government actions that infringe on constitutional rights that have long been applied to noncitizens, such as the right to free speech, protection from unreasonable searches and seizures and due process principles like Miranda rights

"I think it's a dangerous principle to say that the government can essentially do what they want, because they are regulating immigrants," he said. "If you take that logic to its conclusion, it means the government could create a criminal system that applies to citizens and criminal laws that apply to noncitizens."

Under interpretations of the Constitution that have emerged so far in federal appeals courts, a person's ability to possess a gun in self-defense might come down to one distinction: citizens can do it, while others can't.

The phrase "the people" appears in the First, Second, Fourth, Ninth and Tenth Amendments. In the Second Amendment, it's used to say that "the right of the people to keep and bear arms, shall not be infringed."

In the landmark 2008 decision in District of Columbia v. Heller, the Supreme Court recognized for the first time that, under the Second Amendment, people have a right to possess firearms for self-defense.

Since then, legal scholars have found themselves in a debate over Justice Antonin Scalia's choice of words in writing the majority's opinion in the case.

In the decision, Justice Scalia said the Second Amendment "surely elevates above all other interests the right of law-abiding, responsible citizens to use arms in defense of hearth and home."

Scholars disagree on what prompted Justice Scalia's choice of the word "citizens." Some argue that it was used casually, given that the Heller case did not delve into the question of citizenship. Others, like Gulasekaram, say the word was chosen deliberately.

"I think that's a very intentional move — to make the right one that only citizens can wield," he said.

The right to self-defense, on the other hand, is generally seen as belonging to all people regardless of citizenship status. Noncitizens who are charged with violent crimes such as assault, manslaughter or murder are entitled to make self-defense arguments just like U.S. citizens are.

"There's some tension between, on the one hand, saying that the Second Amendment is all about self-defense, and, on the other hand, saying that it's limited to citizens. Because noncitizens do have self-defense rights in the United States," Eric Ruben, a professor at Southern Methodist University's Dedman School of Law and Brennan Center for Justice fellow, told Law360.

University of Texas School of Law professor Sanford V. Levinson said the issue of disarming noncitizens raised an "extremely interesting question."

"If you believe that the point of a weapon is self-defense, and if you believe that basically your right to self-defense is a human right, then you can't say, 'Well, only U.S. citizens have a right to defend themselves from somebody who's attacking them, and noncitizens don't,'" he said.

In the 1990 decision in United States v. Verdugo-Urquidez, the Supreme Court attempted to define the meaning of "the people" as it appears in the Bill of Rights. It concluded that the words referred to individuals who are "part of a national community" or who have deeply established connections with the United States. It was the first high court ruling to address the question since Dred Scott v. Sandford, the infamous 1857 decision holding that U.S. citizenship could not be extended to Black people.

The Verdugo-Urquidez ruling became important to noncitizens who were charged under the alien-in-possession statute, including many people who have lived in the United States for many years, have married U.S. citizens or have U.S. citizen children. The decision makes clear that immigration status alone is not sufficient to exclude a noncitizen from constitutional protections, including those provided by the Second Amendment.

From Heller to Bruen

In the 14 years after the Heller decision but before Bruen, federal appellate courts fielded eight cases challenging the statutes barring noncitizens from owning firearms. Only the Seventh Circuit, in its 2015 decision in U.S. v. Meza-Rodriguez, held conclusively that the Second Amendment applies to at least some unauthorized immigrants.

Three other courts found that Justice Scalia's wording made it clear that undocumented immigrants were not included among "the people" who are covered by the Second Amendment.

In four other cases, courts either assumed that noncitizens were included while still upholding the statute's constitutionality, or avoided addressing the issue altogether.

In writing the court's majority decision in Bruen, Justice Clarence Thomas embraced the use of the word "citizens" to refer to the people who have a constitutional right to possess guns — a right the court extended to public places as part of its ruling.

In addition to expanding gun rights, the decision changed the way courts are required to scrutinize gun laws, creating a new two-step analysis.

In the first step, courts have to decide whether the conduct at issue in a particular case could be protected under the Second Amendment's plain text. That is when discussion about who can be counted among "the people" becomes not only relevant, but crucial. Only when an individual is found to be covered by the amendment does the analysis advance to the following step. Although it borrows Scalia's "citizen" language, the Bruen decision says nothing about whom the Second Amendment covers and who may lawfully possess a firearm.

Once that initial threshold is cleared, courts then have to decide whether the government has sufficiently shown that its restrictions on gun possession have historical antecedents tracing back to the nation's founding era, when the Second Amendment was ratified.

Legal analysts who have been tracking Second Amendment litigation since Bruen have noted that the ruling does not appear to have changed the way courts see the "citizens" issue as it relates to the alien-in-possession statute.

For instance, in United States v. Sitladeen, the only post-Bruen challenge to the law to come before a federal appellate court so far, a three-judge Eighth Circuit panel found that Dayne Adrian Sitladeen, a Canadian citizen who was present in the U.S. unlawfully and was caught with firearms, had no constitutional right to possess firearms because he was not a U.S. citizen.

But the Bruen ruling has had a profound effect on the analysis courts have made in affirming the continued constitutionality of the alien-in-possession law.

Criminal defendants charged under the statute have made an array of arguments against it. The main one is that there are no founding-era restrictions on gun possession by immigrants that compare to the current law.

"It is not the status of a person or their choice of weapon; it is the act of self-protection that matters," Sing-Ledezma argued in his motion to quash his alien-in-possession charge.

As part of the Bruen analysis, Judge Cardone concluded that the concept of illegal immigration did not exist when the Second Amendment was ratified in 1791, and that there was no historical analogue to the current restriction.

Scholars say that to comply with Bruen's historical analogy requirement, courts have relied on past regulations that disarmed entire population groups based on racial, ethnic or political animus: slaves or freed Black people, Catholics, Native Americans, loyalists to the English crown.

William Araiza, a professor of constitutional law at Brooklyn Law School, is one of many U.S. legal scholars who have criticized the Bruen decision for forcing courts to rely on principles the country has long rejected.

"This is one of the problems with using a purely historical approach," he said. "There's a lot of historically grounded distinctions that the law drew that today we would completely reject as racist or sexist or religiously biased."

Overall, legal experts say most lower courts seemed comfortable analogizing the alien-in-possession statute to laws banning people who have not sworn an oath of allegiance to the United States from possessing firearms, finding them sufficiently similar to Section 922 (g)(5).

Federal Defenders of Eastern Washington and Idaho, which represents Vazquez-Ramirez, retained Gulasekaram as an expert to boost the defendant's argument against Section 922(g)(5).

In a declaration filed in court in August, Gulasekaram said applying Bruen's methodology either depends on historical analogues that are too imprecise or generic, or requires comparisons to historical regulations that excluded people based on race, religion, or ethnicity — all of which are forbidden under current constitutional standards.

"You have to be willing to lean into what is clearly a white supremacist, racially subordinating set of laws," Gulasekaram said. "If that's what Bruen is asking us to do, Bruen, I think, is morally and intellectually bankrupt."

'Dangerousness' Could Be Crucial at the Supreme Court

Scholars say it's hard to know if or even when a challenge to Section 922 (g)(5) could land before the Supreme Court, given that no real circuit split currently exists on the issue.

Were the case to wind up before the justices, however, experts say last fall's oral arguments in Rahimi suggest how the U.S. government's arguments could play out.

In responding to questions from Justice Ketanji Brown Jackson about the historical analogues available in that case, Solicitor General Elizabeth Prelogar said the government made a deliberate choice not to rely on historical gun restrictions that disarmed Native Americans and slaves because they were "odious classifications," even if they made sense to 18th-century lawmakers. Instead, she said, the government puts more weight on determining whether a certain category of people is dangerous enough to justify disarming it.

"The solicitor general really put a lot of chips on that square," said Clark Nelly, a senior vice president for legal studies at the Cato Institute.

It's unclear how the Supreme Court would consider that notion in relation to noncitizens, specifically those who are unauthorized. The U.S. government has long defended the alien-in-possession statute by reasoning that noncitizens, in particular those who are undocumented, are more dangerous than other groups, in part because their flaunting of immigration laws does not make them the kind of "law-abiding" people the high court favored in Heller.

An analysis of federal cases challenging Section 922 (g)(5)(A) since the Bruen decision found individual stories that hardly paint a favorable picture of noncitizens claiming Second Amendment rights.

Sitladeen, the defendant in the case decided by the Eighth Circuit in April, for example, was caught with a co-defendant possessing 67 firearms and over a dozen high-capacity pistol magazines in their pickup truck during a traffic stop in Minnesota. At the time, he was also wanted by authorities in his native Canada on murder and fentanyl-trafficking charges.

In New Mexico, meanwhile, Jany Leveille challenged the statute after being indicted on charges of kidnapping a 3-year-old child and taking him to a remote compound where law enforcement officers found several firearms.

Milder Escobar-Temal, a citizen of Guatemala who crossed into the U.S. illegally in 2012, challenged the statute after being caught with three firearms following his arrest on statutory rape charges in Nashville, Tennessee.

Separate prosecutions of two Dominican citizens, Jose Pierret-Mercedes and Moreno Feliciano Vizcaino-Peguero,  involve allegations of possession and intent to sell drugs.

Still, some of the cases involve noncitizens whose gun possession was not connected to any apparent criminal activity and who found themselves in trouble simply because of their immigration status.

Several of them live in high-crime neighborhoods, where the argument for self-defense could be considered more compelling. It's also one that Justices Thomas and Samuel Alito specifically acknowledged in the Bruen decision while discussing the disparate impact of gun regulation on "vulnerable" populations.

Vazquez-Ramirez's case stands out in that regard. As noted by a judge who refused to detain him following his arrest, Vazquez-Ramirez, the father of two U.S. citizen children, had minimal criminal history, and did not pose a danger to the community.

He said in court filings that he grew up in an Othello, Washington, neighborhood known colloquially as "Little Mexico" that has had a rise in murders, robberies, drug use and vandalism in recent years. He said he bought a gun from a friend for personal protection, and had never used it.

Then, in December 2021, he was pulled over after failing to yield at a crosswalk. When a police officer asked Vazquez-Ramirez if he was carrying a firearm, he said "yes" and pointed to the pistol in his waistband. That was the beginning of his federal criminal case.

"Fearing for my family's safety, I purchased a pistol from a friend for personal protection," he said in a court filing. "I provided the pistol to the police officer and complied with his instructions."

--Graphics by Ben Jay. Editing by Karin Roberts.

Have a story idea for Access to Justice? Reach us at

Hello! I'm Law360's automated support bot.

How can I help you today?

For example, you can type:
  • I forgot my password
  • I took a free trial but didn't get a verification email
  • How do I sign up for a newsletter?
Ask a question!