United States v. Duque-Ramirez
Split Score
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Case Summary
Disposition
Affirmed
The Tenth Circuit rejected Jose Antonio Duque-Ramirez’s as-applied Second Amendment challenge to 18 U.S.C. § 922(g)(5)(A), which bars firearm possession by unlawfully present aliens. Assuming without deciding that Duque-Ramirez is within “the people” protected by the Amendment, the court held that the statute is consistent with historical traditions of disarming persons who have not sworn allegiance to the sovereign, and therefore affirmed his conviction.
Circuit Split Identified
Legal Issue
Whether 18 U.S.C. § 922(g) requires an individualized judicial assessment of a defendant’s dangerousness before the government may constitutionally disarm the defendant under the Second Amendment after NYSRPA v. Bruen and United States v. Rahimi.
Circuit Positions
Categorical enforcement of § 922(g) is permissible; no individualized dangerousness finding required.
Second Amendment permits disarmament under § 922(g) only after an individualized determination that the person currently poses a danger.
Issue not decided in this opinion (argument waived); Tenth Circuit takes no position.
Conflict Summary
The Second and Fifth Circuits have held that § 922(g) may be enforced categorically, without an individualized dangerousness hearing, while the Third Circuit requires a case-specific finding that the defendant is presently dangerous. The Tenth Circuit, in this opinion, notes the issue, observes the split, but expressly declines to take a position because the defendant waived the argument on appeal.