911 F.3d 1253
9th Cir.2019Background
- Victor Manuel Torres, a Mexican national unlawfully present in the U.S., was found in a pickup with a loaded .22 revolver and arrested; he admitted gang membership and possession but maintained the backpack was placed by a friend.
- Torres was federally indicted and convicted under 18 U.S.C. § 922(g)(5)(A) (possession of a firearm by an alien illegally or unlawfully in the United States); the district court denied his motion to dismiss and sentenced him to 27 months.
- On appeal Torres conceded the factual elements (illegal presence and possession) but challenged the statute as violating the Second Amendment.
- The Ninth Circuit treated as a question of first impression in the circuit whether the Second Amendment protects unlawful aliens, but declined to decide that threshold and instead assumed (without deciding) unlawful aliens might have some Second Amendment rights.
- The court applied its two-step Chovan framework: (1) whether the law burdens conduct protected by the Second Amendment, and (2) if so, the appropriate level of scrutiny and whether the statute survives that review.
- The court concluded § 922(g)(5) survives intermediate scrutiny as a valid exercise of Congress’s authority to protect public safety and control crime, and affirmed Torres’s conviction.
Issues
| Issue | Torres' Argument | Government's Argument | Held |
|---|---|---|---|
| Whether the Second Amendment protects unlawful aliens from a firearms-possession ban | §922(g)(5) facially destroys Second Amendment protections for an entire class; unlawful aliens may be among "the people" | Cites Heller language tying the right to "law‑abiding, responsible citizens" and argues unlawfully present aliens are outside "the people" | Court assumed (without deciding) unlawful aliens may have some Second Amendment rights and proceeded to scrutiny analysis |
| Appropriate level of scrutiny for §922(g)(5) | Torres urged strict scrutiny | Government urged less than strict; court noted post‑Heller precedent favors intermediate scrutiny for many regulations | Court applied intermediate scrutiny (law not implicating core right and burden tempered) |
| Whether §922(g)(5) satisfies intermediate scrutiny | Argues ban is overbroad and destroys rights of class | Government: important interests in public safety, crime control, officer safety, and removal enforcement; unlawful aliens harder to monitor and more likely to evade detection | Court held statute advances important government interests and is reasonably fitted to those objectives; survives intermediate scrutiny |
| Whether Torres' derivative equal protection/due process claims survive | Second Amendment provides the relevant protection; no additional protection under due process for this claim | Government: Second Amendment analysis disposes of derivative claims | Court held resolution of Second Amendment claim disposes of derivative equal protection and due process claims; affirmed conviction |
Key Cases Cited
- District of Columbia v. Heller, 554 U.S. 570 (Second Amendment protects an individual right to keep and bear arms)
- United States v. Verdugo-Urquidez, 494 U.S. 259 (defines "the people" as those in the national community or with sufficient connection to it)
- United States v. Chovan, 735 F.3d 1127 (9th Cir.) (adopted two-step Second Amendment framework and test for scrutiny)
- United States v. Portillo-Munoz, 643 F.3d 437 (5th Cir.) (held unlawfully present aliens are not within the Second Amendment’s "the people")
- United States v. Meza-Rodriguez, 798 F.3d 664 (7th Cir.) (applied Verdugo-Urquidez connectivity test but upheld §922(g)(5) under intermediate scrutiny)
- United States v. Huitron-Guizar, 678 F.3d 1164 (10th Cir.) (assumed some unlawful aliens fall within Second Amendment scope and upheld §922(g)(5) under intermediate scrutiny)