United States v. Victor Torres , 911 F.3d 1253 ( 2019 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 15-10492
Plaintiff-Appellee,
D.C. No.
v. 5:14-cr-00255-EJD-1
VICTOR MANUEL TORRES,
Defendant-Appellant. OPINION
Appeal from the United States District Court
for the Northern District of California
Edward J. Davila, District Judge, Presiding
Argued and Submitted December 12, 2016
San Francisco, California
Filed January 8, 2019
Before: Sidney R. Thomas,* Chief Judge, N. Randy Smith,
Circuit Judge, and Sharon L. Gleason,** District Judge.
Opinion by Judge N.R. Smith
*
Following the retirement of Judge Kozinski, Chief Judge Sidney R.
Thomas was randomly drawn to replace him. Ninth Cir. Gen. Order 3.2.h.
Chief Judge Thomas has read the briefs, reviewed the record, and watched
a video recording of oral argument.
**
The Honorable Sharon L. Gleason, United States District Judge for
the District of Alaska, sitting by designation.
2 UNITED STATES V. TORRES
SUMMARY***
Criminal Law
The panel affirmed a conviction for possessing a firearm
while being an alien unlawfully in the United States in
violation of 18 U.S.C. § 922(g)(5)(A).
Assuming without deciding that unlawful aliens in this
country hold some degree of rights under the Second
Amendment, the panel held that § 922(g)(5) is constitutional
under intermediate scrutiny.
COUNSEL
Adam G. Gasner (argued), Law Office of Adam G. Gasner,
San Francisco, California, for Defendant-Appellant.
William James Gullotta (argued), Special Assistant United
States Attorney; Barbara J. Valliere, Chief, Appellate
Division; United States Attorney’s Office, Oakland,
California; for Plaintiff-Appellee.
***
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
UNITED STATES V. TORRES 3
OPINION
N.R. SMITH, Circuit Judge:
Assuming that unlawful aliens in this country hold some
degree of rights under the Second Amendment, a statute
prohibiting the possession of firearms by an alien unlawfully
present in the United States withstands constitutional scrutiny
and is a valid exercise of Congress’s authority.
I. BACKGROUND
Defendant Victor Manuel Torres appeals his conviction
for possessing a firearm while “being an alien . . . illegally or
unlawfully in the United States,” in violation of 18 U.S.C.
§ 922(g)(5)(A).1 Torres was born in Mexico in 1985.
Approximately four years later, he, his younger sister, and his
mother moved to San Jose, California, to join Torres’s father,
who had entered the United States a year earlier. Nothing in
the record suggests that either of Torres’s parents ever had an
immigration status through which Torres could qualify for
legal status in the United States. Torres was enrolled in the
school system in San Jose from 1991 until he was expelled in
2000. This expulsion resulted from Torres’s affiliation with
the Sur Santos Pride gang, which he joined at age fourteen.
Because of his gang involvement and attendant trouble at
school, Torres’s parents sent him back to live in Mexico in
1
The discourse relevant to our discussion uses a variety of terms,
such as “unlawful alien,” “illegal alien,” and “undocumented immigrant”
(among several others) to refer to a person who is not a citizen of the
United States and whose presence in the United States is not lawful.
Throughout this opinion, we use the term “unlawful alien” to refer to a
person with this immigration status.
4 UNITED STATES V. TORRES
2002, when he was sixteen years old. After he reached
adulthood, Torres attempted to unlawfully enter the United
States three times in June 2005. During each of his first two
attempts, Torres was apprehended and permitted to
voluntarily return to Mexico. However, he successfully
entered the United States unlawfully on the third attempt.
Upon this reentry, Torres joined his family in San Jose and
began working with his father in landscaping. In 2012, Torres
married a United States citizen in San Jose. However, Torres
never applied for legal status.
In March 2014, a citizen reported to the Los Gatos Police
Department that there was a suspicious pickup truck in a
nearby parking lot and that its driver might be attempting to
sell a stolen bicycle. When officers arrived, the driver’s side
door of the suspicious pickup was open. The officers found
Torres working on something on the bed of the vehicle.
Through the open driver’s side door, officers saw a backpack
and what appeared to be counterfeit license plates. The bed of
the pickup contained “a newer looking Trek road bike.”
Torres told the officers that he owned the bicycle and that he
had received it as a gift in December 2013. However, by
reporting the bicycle’s serial number to dispatch, officers
confirmed that it had been reported stolen two days earlier.
When later confronted with this information, Torres admitted
he knew the bicycle was stolen. Officers requested that Torres
provide identification. Torres responded that it was in his
vehicle. When Torres began to reach into the pickup to
allegedly retrieve his identification, the officers stopped him
out of concern for safety. An officer then looked into the
vehicle and did not see any identification, but the officer
asked if he could look inside Torres’s backpack. Torres
consented. Inside the backpack, the officer found a loaded .22
UNITED STATES V. TORRES 5
caliber revolver, bolt cutters, and what appeared to be two
homemade silencers for the firearm.
Upon this discovery, officers placed Torres under arrest.
In addition to the contents of Torres’s backpack, the
subsequent search of his vehicle revealed a small amount of
methamphetamine and a glass pipe. Officers transported
Torres to a holding facility where they explained his Miranda
rights to him before conducting an interview. In response to
questions about two of his tattoos that indicated a gang
affiliation, Torres admitted to being an active member of Sur
Santos Pride. According to Torres, the stolen bicycle and the
backpack containing the firearm had been placed in his
vehicle by a friend (a fellow gang member), whose identity
Torres refused to reveal.
Subsequently, Torres was federally indicted in the
Northern District of California for one count of being an
unlawful alien in possession of a firearm, in violation of
18 U.S.C. § 922(g)(5)(A).2 Torres moved to dismiss the
indictment, arguing that Second Amendment protections
apply to unlawful aliens and that § 922(g)(5) violates the
Second Amendment. The district court denied the motion,
and the case proceeded to trial, resulting in Torres’s
conviction. The district court imposed a sentence of twenty-
seven months of incarceration followed by three years of
supervised release.
On appeal, Torres admits that he is an alien unlawfully
present in the United States and that he possessed the firearm
found in his vehicle. However, he contests his conviction by
2
Torres was also charged with several offenses in California state
court, which are not at issue in this case.
6 UNITED STATES V. TORRES
challenging on constitutional grounds the federal statute
under which he was convicted.
II. STANDARD OF REVIEW
We consider challenges to the constitutionality of a
statute de novo. United States v. Garcia, 768 F.3d 822, 827
(9th Cir. 2014).
III. DISCUSSION
The Second Amendment to the United States Constitution
guarantees that “the right of the people to keep and bear
Arms, shall not be infringed.” U.S. Const. amend. II. We
must answer, as an issue of first impression in our circuit,
whether this right is violated by a federal criminal statute
prohibiting the possession of a firearm by an alien unlawfully
in this country. The Second Amendment’s application to
unlawful aliens has been widely debated among courts and
scholars in recent years, with analytical divisions even among
those agreeing in result. We proceed to address this issue,
first, by outlining the general framework to analyze
challenges under the Second Amendment. We then review
the approach of other circuits to Second Amendment
challenges to the specific statute at issue. Finally turning to
the parties’ arguments, we assume (without deciding) that the
Second Amendment extends to unlawful aliens, and we
conclude that § 922(g)(5) is constitutional under intermediate
scrutiny.
Central to the rights guaranteed by the Second
Amendment is “the inherent right of self-defense.” District of
Columbia v. Heller, 554 U.S. 570, 628 (2008). However,
while the Second Amendment “guarantee[s] the individual
UNITED STATES V. TORRES 7
right to possess and carry weapons in case of confrontation,”
the right “is not unlimited.” Id. at 592, 626. Congress may
place certain limits on where the right is exercised, how the
right is exercised, and who may exercise the right. See id. at
626–27; United States v. Carpio-Leon, 701 F.3d 974, 977 (4th
Cir. 2012) (“[T]he Second Amendment does not guarantee
the right to possess for every purpose, to possess every type
of weapon, to possess at every place, or to possess by every
person.”); United States v. Huitron-Guizar, 678 F.3d 1164,
1166 (10th Cir. 2012) (“The right to bear arms, however
venerable, is qualified by what one might call the ‘who,’
‘what,’ ‘where,’ ‘when,’ and ‘why.’”). In fact, Congress has
determined that certain groups should be prohibited
altogether from possessing firearms. See 18 U.S.C. § 922(g).
This case concerns such a limitation. Under § 922(g)(5), it is
unlawful for an alien “illegally or unlawfully in the United
States . . . to . . . possess in or affecting commerce, any
firearm.” Torres challenges this prohibition.3 According to
Torres, § 922(g)(5) violates the Second Amendment, because
it completely destroys (rather than limits) Second
Amendment protections as to an entire class of people. See
Heller, 554 U.S. at 628–29.
In United States v. Chovan, we adopted a two-step inquiry
to analyze claims that a law violates the Second Amendment.
3
Torres claims to make facial and as-applied challenges to this
statute. However, we agree with the government that Torres fails to
explain his theory of how § 922(g)(5) is unconstitutional as applied to
him. Therefore, we consider only the facial challenge. See Entm’t
Research Grp., Inc. v. Genesis Creative Grp., Inc., 122 F.3d 1211, 1217
(9th Cir. 1997) (“We review only issues which are argued specifically and
distinctly in a party’s opening brief. We will not manufacture arguments
for an appellant, and a bare assertion does not preserve a claim . . . .”
(citation omitted)).
8 UNITED STATES V. TORRES
735 F.3d 1127, 1136 (9th Cir. 2013). This test “(1) asks
whether the challenged law burdens conduct protected by the
Second Amendment and (2) if so, directs courts to apply an
appropriate level of scrutiny.” Id. Accordingly, we turn to the
first question.
A. Does § 922(g)(5) burden conduct protected by the
Second Amendment?
Under the first Chovan step, we cannot “apply the Second
Amendment to protect a right that does not exist under the
Amendment.” Peruta v. Cty. of San Diego, 824 F.3d 919, 942
(9th Cir. 2016) (en banc), cert. denied sub nom. Peruta v.
California, 137 S. Ct. 1995 (2017). Therefore, the first step
of our analysis requires us to explore the amendment’s reach
“based on a ‘historical understanding of the scope of the
[Second Amendment] right.’” Jackson v. City & Cty. of San
Francisco, 746 F.3d 953, 960 (9th Cir. 2014) (quoting Heller,
554 U.S. at 625). A law does not burden Second Amendment
rights, if it either falls within “one of the ‘presumptively
lawful regulatory measures’ identified in Heller” or regulates
conduct that historically has fallen outside the scope of the
Second Amendment. Id.The non-exhaustive examples of presumptively lawful
regulations include “longstanding prohibitions on the
possession of firearms by felons and the mentally ill, or laws
forbidding the carrying of firearms in sensitive places such as
schools and government buildings, or laws imposing
conditions and qualifications on the commercial sale of
arms.” Heller, 554 U.S. at 626–27 & n.26; see also United
States v. Vongxay, 594 F.3d 1111, 1115 (9th Cir. 2010).
“These measures comport with the Second Amendment
because they affect individuals or conduct unprotected by the
UNITED STATES V. TORRES 9
right to keep and bear arms.” Binderup v. Attorney Gen. U.S.,
836 F.3d 336, 343 (3d Cir. 2016) (en banc), cert. denied sub
nom. Sessions v. Binderup, 137 S. Ct. 2323 (2017), and cert.
denied sub nom. Binderup v. Sessions, 137 S. Ct. 2323(2017). However, the government does not argue that
§ 922(g)(5) is a presumptively lawful regulation, so that
question is not before us. Therefore, we focus our inquiry on
whether possession of firearms by unlawful aliens falls within
the “historical understanding of the scope of the [Second
Amendment] right.” Heller, 554 U.S. at 625; see also id. at
626–28 (outlining some of the historical limits on the scope
of the Second Amendment right).
In this case, the question of whether possession of
firearms by unlawful aliens has historically fallen outside the
Second Amendment requires an examination of whether
unlawful aliens are included within the term “the people.”
The text of the Second Amendment plainly states that the
right “to keep and bear Arms” is reserved only to “the
people.” Far from plain, however, is the scope of those who
fall within “the people.” On this question, there are two
Supreme Court cases that provide some guidance: United
States v. Verdugo-Urquidez, 494 U.S. 259 (1990), and Heller.
In Verdugo-Urquidez, the Supreme Court held that a
person who “was a citizen and resident of Mexico with no
voluntary attachment to the United States, and the place
searched was located in Mexico,” was not within “the people”
protected by the Fourth Amendment. 494 U.S. at 274–75. The
Court explained, “the people” is “a term of art employed in
select parts of the Constitution.” Id. at 265. After examining
the text of several amendments, the Court concluded:
10 UNITED STATES V. TORRES
While this textual exegesis is by no means
conclusive, it suggests that “the people”
protected by the Fourth Amendment, and by
the First and Second Amendments, and to
whom rights and powers are reserved in the
Ninth and Tenth Amendments, refers to a
class of persons [(1)] who are part of a
national community or [(2)] who have
otherwise developed sufficient connection
with this country to be considered part of that
community.
Id. (citing United States ex rel. Turner v. Williams, 194 U.S.
279, 292 (1904)).
In Heller, the Supreme Court conducted its “first in-depth
examination of the Second Amendment.” 554 U.S. at 635.
Heller addressed a Second Amendment challenge to “a
District of Columbia prohibition on the possession of usable
handguns in the home.” Id. at 573. The Court engaged in
textual and historical analyses, holding that the Second
Amendment protects an “individual right,” unrelated to
service in a militia, and that the District of Columbia’s
prohibition of usable handguns in the home was
unconstitutional. Id. at 592–94, 635. Throughout its opinion,
the Court described the Second Amendment as “protect[ing]
the right of citizens” and “belong[ing] to all Americans.” Id.
at 581, 595 (emphasis added). The Court also wrote that the
amendment “surely elevates above all other interests the right
of law-abiding, responsible citizens to use arms in defense of
hearth and home.” Id. at 635 (emphasis added).
However, the Heller decision did not resolve who had the
Second Amendment right; Heller resolved if there were an
UNITED STATES V. TORRES 11
individual right per se under the Second Amendment. Id. at
595 (“There seems to us no doubt, on the basis of both text
and history, that the Second Amendment conferred an
individual right to keep and bear arms.”); see also Kachalsky
v. Cty. of Westchester, 701 F.3d 81, 88–89 (2d Cir. 2012)
(explaining that, after the Court concluded the Second
Amendment was meant to protect individual rights, “[t]here
was no need in Heller to further define [its] scope . . . .”).
And, the Heller Court also stated that “the people,” as a term,
“unambiguously refers to all members of the political
community, not an unspecified subset” and block-quoted the
definition of “the people” as quoted supra from Verdugo-
Urquidez. Heller, 554 U.S. at 580.
Using these two guiding cases, five of our sister circuits
have addressed the question of § 922(g)(5)’s constitutionality;
however, the inconsistency in reasoning among these
courts—though unanimous in ultimate outcome—
demonstrates that Heller and Verdugo-Urquidez do not
provide us a definitive outcome.
In 2011, the Fifth Circuit addressed this question in
United States v. Portillo-Munoz, 643 F.3d 437 (5th Cir.
2011). The defendant in Portillo-Munoz, an unlawful alien,
argued that under Verdugo-Urquidez’s construction of “the
people,” he should be considered as within the scope of the
phrase because he had “developed sufficient connection[s]”
to the United States. Id. at 440. The Fifth Circuit concluded
that, “[w]hatever else the term means or includes, the phrase
‘the people’ in the Second Amendment of the Constitution
does not include aliens illegally in the United States.” Id. at
442. To reach its holding, the Portillo-Munoz court relied
heavily on the Supreme Court’s language from Heller that
described those persons who held a Second Amendment right
12 UNITED STATES V. TORRES
as “members of the political community,” “Americans,” and
“law-abiding, responsible citizens.” Id. at 440. The court
concluded that “aliens who enter or remain in this country
illegally and without authorization” are not included within
the common usage of those terms. Id. Further, the court
explicitly rejected the defendant’s Verdugo-Urquidez
argument, stating that “neither this court nor the Supreme
Court has held that the Fourth Amendment extends to a native
and citizen of another nation who entered and remained in the
United States illegally.” Id. It explained that, even though
“the people” may be in both amendments, that fact does not
“mandate[] a holding that the two amendments cover exactly
the same groups of people.” Id.4
Similarly, the Fourth Circuit in Carpio-Leon held that
“illegal aliens do not belong to the class of law-abiding
members of the political community to whom the protection
of the Second Amendment is given.” 701 F.3d at 981. To
reach this conclusion, the court acknowledged that Heller
held “the people” is a “term of art” and cited to Verdugo-
Urquidez to define who is included in that term. Id. at 978.
However, the Fourth Circuit concluded that Heller’s specific
use of the phrases “law-abiding,” “Americans,” and
“citizenship” meant the “Supreme Court’s precedent is
therefore not clear on whether ‘the people’ includes illegal
aliens.” Id. at 978–81. It then reasoned that the Heller Court’s
holding that the “core” of the Second Amendment right “is
the right of self-defense by ‘law-abiding, responsible
4
Shortly after the Portillo-Munoz decision, the Eighth Circuit,
without significant discussion, agreed with the Fifth Circuit and held that
“the protections of the Second Amendment do not extend to aliens
illegally present in this country.” United States v. Flores, 663 F.3d 1022,
1023 (8th Cir. 2011) (per curiam).
UNITED STATES V. TORRES 13
citizens’” was a “distinct analysis.” Id. at 978–79 (emphasis
in original) (quoting Heller, 554 U.S. at 635). The Fourth
Circuit then concluded that “[t]he Heller court reached the
Second Amendment’s connection to law-abiding citizens
through a historical analysis, independent of its discussion
about who constitutes ‘the people.’” Id. at 979. It then
conducted a historical inquiry as to whether or not unlawful
aliens were included in the definition of “law-abiding,” and
concluded that “Carpio-Leon’s historical evidence does not
controvert the historical evidence supporting the notion that
the government could disarm individuals who are not law-
abiding members of the political community.” Id. at 979–81.
Unlike the Fourth, Fifth, and Eighth Circuits, when
confronted with the instant question, the Seventh Circuit held,
in United States v. Meza-Rodriguez, 798 F.3d 664 (7th Cir.
2015), that Heller’s notation that the Second, First, and
Fourth Amendments all use the phrase “the people,” and its
citation to Verdugo-Urquidez was sufficient to overcome the
Supreme Court’s “passing references” to “law-abiding
citizens” and “members of the political community,” which
did not define “people.” Id. at 669–70. The Seventh Circuit
reasoned that “[a]n interpretation of the Second Amendment
as consistent with the other amendments passed as part of the
Bill of Rights has the advantage of treating identical phrasing
in the same way and respecting the fact that the first ten
amendments were adopted as a package.” Id. at 670.
Accordingly, the Meza-Rodriguez court found the Verdugo-
Urquidez test was the appropriate mechanism to determine if
an unlawful alien fell within the scope of the Second
Amendment right. Id. (“At a minimum, Verdugo-Urquidez
governs the applicability of the Fourth Amendment to
noncitizens.”). Ultimately, the court held the unlawful alien
had sufficient connections to the United States because he
14 UNITED STATES V. TORRES
had “lived continuously in the United States for nearly all his
life,” but upheld the statute under intermediate scrutiny as an
appropriate exercise of Congressional authority. Id. at
670–73.
Finally, in Huitron-Guizar, the Tenth Circuit, like the
Seventh Circuit, refused to find that Heller’s use of “citizen”
was a conclusive determination that unlawful aliens are not
within the scope of the Second Amendment right, but,
instead, assumed for the purposes of the analysis that (at least
some) unlawful aliens fall within the scope and concluded the
statute passed intermediate scrutiny. 678 F.3d at 1168–70.
The Tenth Circuit’s conclusion was grounded in the fact that
the Heller decision did not purport to decide the scope of the
phrase “the people” in the Second Amendment, but, rather,
“the question in Heller was the amendment’s raison
d’être—does it protect an individual or collective right?—and
aliens were not part of that calculus.” Id. at 1168. Further, the
Tenth Circuit was concerned with finding that Heller’s
decision excluded unlawful aliens because it could not
conclude “the word ‘citizen’ was used deliberately to settle
the question, not least because doing so would conflict with
Verdugo-Urquidez, a case Heller relied on.” Id. As such,
because of the “large and complicated” question of whether
unlawful aliens were included in the scope of the Second
Amendment, the Tenth Circuit concluded the prudent course
of action was to assume so and, ultimately, concluded
§ 922(g)(5) passed intermediate scrutiny. Id. at 1169–70.
Here, the Government primarily focuses its argument on
the approaches of the Fourth, Fifth, and Eighth Circuits by
arguing that unlawful aliens are not included in “the people.”
First, the government, relying on language from Heller,
argues that historical evidence supports the conclusion that
UNITED STATES V. TORRES 15
unlawful aliens “are not law-abiding, responsible citizens,”
because “the government traditionally had the authority to
disarm people who were not part of the political community,
as well as people who were perceived as potentially disloyal
or dangerous.” Second, the Government argues that post-
Heller, the Second Amendment right is “connected to
citizenship or membership in the national political
community,” and unlawful aliens are not in those categories.
However, we agree with the Tenth Circuit’s approach,
because we believe the state of the law precludes us from
reaching a definite answer on whether unlawful aliens are
included in the scope of the Second Amendment right. The
Tenth Circuit correctly held that this question is “large and
complicated.” Id. at 1169. Therefore, on this record, we find
it imprudent to examine whether Torres (as an unlawful alien)
falls within the scope of the Second Amendment right. As
such, we assume (without deciding) that unlawful aliens, such
as Torres, fall within the scope of the Second Amendment
right as articulated under Heller and Vergudo-Urquidez and
proceed to the appropriate scrutiny we should give to
§ 922(g)(5). Silvester v. Harris, 843 F.3d 816, 826–27 (9th
Cir. 2016) (“We assume, without deciding, that the regulation
[imposing a waiting period between purchase and delivery of
a firearm] is within the scope of the Amendment and is not
the type of regulation that must be considered presumptively
valid.”); Chovan, 735 F.3d at 1137 (assuming existence of
Second Amendment rights where record was insufficient to
show domestic violence misdemeanants were historically
excluded from the scope of the Second Amendment); United
States v. Chester, 628 F.3d 673, 681–82 (4th Cir. 2010)
(assuming that Second Amendment rights were intact, where
the evidence was inconclusive on that question); cf. Mahoney
v. Sessions, 871 F.3d 873, 879 (9th Cir. 2017) (“[B]ecause of
16 UNITED STATES V. TORRES
the lack of historical evidence in the record before us, we
assume, without deciding, that the UF Policy burdens conduct
falling within the scope of the Second Amendment right.”
(citations omitted)).
B. Does § 922(g)(5) impose a permissible restriction on
the Second Amendment right of an unlawful alien?
Before we can conclude whether § 922(g)(5) imposes a
permissible restriction on the Second Amendment rights of
aliens unlawfully present in the United States, we must first
determine the appropriate level of scrutiny to apply.
1. Level of scrutiny
Although Torres argues that we should apply strict
scrutiny, he acknowledges that the relevant case law has not
made clear what standard is appropriate.5 We have previously
concluded that laws burdening Second Amendment rights
must withstand more searching scrutiny than rational basis
5
Cases from other circuits considering § 922(g)(5) do not
conclusively show the appropriate level of scrutiny. See Meza-Rodriguez,
798 F.3d at 672–73 (applying review akin to intermediate scrutiny);
Carpio-Leon, 701 F.3d at 982–83 (not reaching the issue of the
appropriate scrutiny under the Second Amendment but applying rational
basis review to Fifth Amendment challenge, reasoning that unlawful aliens
do not have a fundamental right to bear arms); Huitron-Guizar, 678 F.3d
at 1169 (assuming intermediate scrutiny applies to Second Amendment
claim, based on comparison to challenge made under § 922(g)(8)’s
prohibition for one who is subject to a domestic violence protection order;
but applying rational basis review to equal protection claim, because that
is the appropriate standard under which to scrutinize “[f]ederal statutes
that classify based on alienage”); see generally Flores, 663 F.3d 1022 (not
reaching the question of the appropriate level of scrutiny); Portillo-Munoz,
643 F.3d 437 (same).
UNITED STATES V. TORRES 17
review. Chovan, 735 F.3d at 1137. The level of scrutiny we
apply “depend[s] on (1) ‘how close the law comes to the core
of the Second Amendment right,’ and (2) ‘the severity of the
law’s burden on the right.’” Id. at 1138 (quoting Ezell v. City
of Chicago, 651 F.3d 684, 703 (7th Cir. 2011)). “A law that
implicates the core of the Second Amendment right and
severely burdens that right warrants strict scrutiny.” Silvester,
843 F.3d at 821. However, intermediate scrutiny is
appropriate “if a challenged law does not implicate a core
Second Amendment right, or does not place a substantial
burden on the Second Amendment right.” Jackson, 746 F.3d
at 961. Although not dispositive of the question, we note that
there has been “near unanimity in the post-Heller case law
that, when considering regulations that fall within the scope
of the Second Amendment, intermediate scrutiny is
appropriate.” Silvester, 843 F.3d at 823.
In considering the first question to determine the
appropriate level of scrutiny—the proximity of the challenged
law to “the core of the Second Amendment right”—“Heller
tells us that the core of the Second Amendment is ‘the right
of law-abiding, responsible citizens to use arms in defense of
hearth and home.’” Chovan, 735 F.3d at 1138 (emphasis
added) (quoting Heller, 554 U.S. at 635). Under a different
subdivision of § 922(g), which prohibits firearm possession
for domestic violence misdemeanants, we held in Chovan that
“Section 922(g)(9) does not implicate this core Second
Amendment right because it regulates firearm possession for
individuals with criminal convictions.” Id. The defendant’s
asserted right to possess a firearm for self-defense was not
within the core of the Second Amendment (as identified in
Heller), because he was not a “law-abiding, responsible
citizen.” Id. (quoting Chester, 628 F.3d at 682–83). Likewise,
§ 922(g)(5) does not burden this core right, because the
18 UNITED STATES V. TORRES
prohibition applies only to those who are present in the
United States “illegally or unlawfully.” 18 U.S.C.
§ 922(g)(5)(A) (emphasis added).
Under the second question for determining the level of
scrutiny to apply—“the severity of the law’s burden on the
right” at issue—we found in Chovan a “quite substantial”
burden on Second Amendment rights from a statute imposing
a lifelong “‘total prohibition’ on firearm possession for a
class of individuals.” Chovan, 735 F.3d at 1138 (analyzing
§ 922(g)(9)). We found this burden tempered, however, by
exemptions from the lifetime ban for persons whose
conviction “has been expunged or set aside” or who have
“been pardoned or . . . had [their] civil rights restored.” Id. at
1130, 1138; 18 U.S.C. § 921(a)(33)(B)(ii). Thus, “we applied
‘intermediate’ rather than ‘strict’ judicial scrutiny in part
because section 922(g)(9)’s ‘burden’ on Second Amendment
rights was ‘lightened’ by those mechanisms.” Fisher v.
Kealoha, 855 F.3d 1067, 1071 n.2 (9th Cir. 2017) (citing
Chovan, 735 F.3d at 1138). The burden found in § 922(g)(5)
is similarly tempered, because there is nothing indicating that
the prohibition on firearm possession extends beyond the time
that an alien’s presence in the United States is unlawful.
The factual condition triggering the prohibition in
§ 922(g)(9)—that a person “has been convicted” of a
domestic violence misdemeanor—is phrased in the past tense,
indicating that (once that event occurs) the ban continues for
life, unless one of the enumerated exceptions applies.
Conversely, the factual condition triggering the prohibition in
§ 922(g)(5)—that a person “is illegally or unlawfully in the
United States”—is phrased in the present tense, indicating
that the person affected by that provision may remove himself
from the prohibition by acquiring lawful immigration status.
The burden imposed by § 922(g)(5) is, therefore, tempered.
UNITED STATES V. TORRES 19
Because § 922(g)(5) does not implicate the core Second
Amendment right, and because its burden is tempered, we
proceed to apply intermediate scrutiny. See Fyock v.
Sunnyvale, 779 F.3d 991, 998–99 (9th Cir. 2015)
(“Intermediate scrutiny is appropriate if the regulation at
issue does not implicate the core Second Amendment right or
does not place a substantial burden on that right.”); Chovan,
735 F.3d at 1138.
2. Application of intermediate scrutiny
For a challenged statute to survive intermediate scrutiny,
it must have (1) a “significant, substantial, or important”
government objective; and (2) a reasonable fit between that
objective and the conduct regulated. Chovan, 735 F.3d at
1139. A statute need not utilize “the least restrictive means of
achieving its interest” in order to withstand intermediate
scrutiny. Fyock, 779 F.3d at 1000. Instead, the statute simply
needs to “promote[] a ‘substantial government interest that
would be achieved less effectively absent the regulation.’” Id.
(quoting Colacurcio v. City of Kent, 163 F.3d 545, 553 (9th
Cir. 1998)).
The government argues that it has important “interests in
crime control and public safety.” We agree. “The
[government] has the important government interest of
ensuring the safety of both the public and its police officers.”
Mahoney, 871 F.3d at 882 (citing United States v. Salerno,
481 U.S. 739, 748 (1987); Jackson, 746 F.3d at 965); see also
Binderup, 836 F.3d at 390 (“The stated purpose of the 1968
revision was to curb crime by keeping firearms out of the
hands of those not legally entitled to possess them because of
age, criminal background, or incompetency.” (Fuentes, J.,
concurring in part and dissenting in part) (internal citations
20 UNITED STATES V. TORRES
omitted)); Meza-Rodriguez, 798 F.3d at 673 (“Congress’s
objective in passing § 922(g) was ‘to keep guns out of the
hands of presumptively risky people’ and to ‘suppress[]
armed violence.’” (alteration in original) (quoting United
States v. Yancey, 621 F.3d 681, 683–84 (7th Cir. 2010))).
These government interests are particularly applicable to
those subject to removal. “[T]hose who show a willingness to
defy our law are . . . a group that ought not be armed when
authorities seek them.” Huitron-Guizar, 678 F.3d at 1170. If
armed, unlawful aliens could pose a threat to immigration
officers or other law enforcement who attempt to apprehend
and remove them.
Further,“[unlawful aliens] often live ‘largely outside the
formal system of registration, employment, and identification,
[and] are harder to trace and more likely to assume a false
identity.’” Meza-Rodriguez, 798 F.3d at 673 (quoting
Huitron-Guizar, 678 F.3d at 1170). Therefore, “the ban on
the possession of firearms by [unlawful aliens] is
substantially related to the statute’s general objectives
because such persons are able purposefully to evade detection
by law enforcement.” Id.Finally, “the government has a[] strong interest in
preventing people who already have disrespected the law
(including, in addition to aliens unlawfully in the country,
felons, § 922(g)(1), fugitives, § 922(g)(2), and those
convicted of misdemeanor crimes of domestic violence,
§ 922(g)(9)) from possessing guns.” Id. Section 922(g)(5) and
other concurrent additions to § 922(g) “reflect[] Congress’s
judgment that persons within these categories ‘may not be
trusted to possess a firearm without becoming a threat to
society.’” Binderup, 836 F.3d at 390 & n.98 (Fuentes, J.,
concurring in part and dissenting in part) (quoting
UNITED STATES V. TORRES 21
Scarborough v. United States, 431 U.S. 563, 572 (1977)).
“[T]hese restrictions . . . disarm groups whose members
Congress believes are unable or unwilling to conduct
themselves in conformity with the responsibilities of
citizenship.” Id. at 390–91.
In sum, the government’s interests in controlling crime
and ensuring public safety are promoted by keeping firearms
out of the hands of unlawful aliens—who are subject to
removal, are difficult to monitor due to an inherent incentive
to falsify information and evade law enforcement, and have
already shown they are unable or unwilling to conform their
conduct to the laws of this country. These important
government interests “would be achieved less effectively”
were it not for § 922(g)(5). Fyock, 779 F.3d at 1000.6
Accordingly, § 922(g)(5) survives intermediate scrutiny.
IV. CONCLUSION
The present state of the law leaves us unable to conclude
with certainty whether aliens unlawfully present in the United
States are part of “the people” to whom Second Amendment
protections extend. Nonetheless, assuming that unlawful
aliens do hold some degree of Second Amendment rights,
6
Although a prohibition applying to all unlawful aliens may be over-
inclusive, a statute need not utilize “the least restrictive means of
achieving its interest” in order to withstand intermediate scrutiny. Fyock,
779 F.3d at 1000; see also Huitron-Guizar, 678 F.3d at 1170 (recognizing
that § 922(g)(1)’s prohibition on firearm possession by all those convicted
of felonies is a valid restriction, despite the reality that “[t]he class of
convicted felons, too, includes non-violent offenders”).
22 UNITED STATES V. TORRES
those rights are not unlimited, and the restriction in
§ 922(g)(5) is a valid exercise of Congress’s authority.7
AFFIRMED.
7
This conclusion also necessarily disposes of Torres’s derivative
equal protection and due process claims. Teixeira v. Cty. of Alameda, 822
F.3d 1047, 1052 (9th Cir.), reh’g en banc granted, 854 F.3d 1046 (9th Cir.
2016); see also Portillo-Munoz, 643 F.3d at 442 n.4 (explaining that,
because the statute at issue (§ 922(g)(5)) was a federal law to which the
Bill of Rights directly applied (without incorporation), the alien could
pursue the right only under the Second Amendment and could not “look
to the due process clause as an additional source of protection for a right
to keep and bear arms” (citing Graham v. Connor, 490 U.S. 386, 394–95
(1989))).