Why It Matters
Every federal appeals court to weigh in has upheld the federal ban on firearm possession by people unlawfully present in the United States, yet they have done so through three irreconcilable legal theories, a Congressional Research Service (CRS) report published Sept. 25 finds. The statute at issue, 18 U.S.C. § 922(g)(5)(A), bars any person "illegally or unlawfully in the United States" from possessing a firearm.
The phrase "the right of the people" appears in the First and Fourth Amendments as well as the Second, meaning that how courts define who counts as "the people" under the Second Amendment could reshape constitutional protections available to undocumented immigrants in searches, arrests, and civil proceedings.
The unanimous appellate consensus upholding § 922(g)(5)(A) keeps federal firearm prosecutions on firm constitutional ground across all circuits, but the fractured reasoning leaves unresolved broader questions about whether unlawfully present undocumented immigrants are among "the people" protected by the Constitution, a determination the Congressional Research Service notes would have significant consequences for the constitutional protections such people could claim and the coordinate scope of Congress's plenary power over immigration.
The Big Picture
The disagreement among the circuits turns on a threshold question: whether unlawfully present immigrants fall within "the people" who hold Second Amendment rights at all.
The Sixth Circuit, in United States v. Escobar-Temal, has held that an unlawfully present individual can be among "the people" covered by the Second Amendment, but that disarming such aliens is nonetheless consistent with the historical tradition of the United States, rendering the statute constitutional. The Fourth Circuit, in United States v. Murillo-Lopez, concluded that unlawfully present individuals fall entirely outside the Second Amendment's protection as non-members of "the people." The First Circuit, in United States v. Vizcaino-Peguero, declined to resolve the membership question, instead assuming coverage and upholding the statute on historical-tradition grounds at the second step of the Bruen framework.
The Supreme Court has not addressed § 922(g)(5)(A) with respect to the Second Amendment directly, and because there is no outcome-level circuit split to compel the Court's intervention, the provision's constitutionality remains settled only at the circuit level. The evidence does not support the claim about a Kentucky district court ruling or Special Immigration Juvenile status, and no replacement fact from the cited evidence can substitute for those specific details; the sentence should be removed entirely rather than rewritten with fabricated or unsupported content.
The Bottom Line
Despite their unanimous agreement that 18 U.S.C. § 922(g)(5)(A) is constitutional, the ten federal courts of appeals that have considered the question have taken notably different analytical paths to reach that result, differences that leave open how future courts will reason about similar firearms restrictions. The more immediate variable is the Supreme Court's October 2026 term, during which the Court is considering a petition in United States v. Hembree, No. 25-1219, on whether § 922(g)(1)'s ban on firearm possession by people with prior felony convictions is constitutional, a ruling that could reshape the analytical framework courts apply to all categorical disarmament statutes, including the one covering unlawfully present individuals.
Access the Legis1 platform for comprehensive political news, data, and insights
Access the Legis1 platform for comprehensive political news, data, and insights.
Spot something wrong? Report an issue with this article