US v. Vizcaino-Peguero
Split Score
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Case Summary
Disposition
Affirmed
The First Circuit affirmed Moreno Vizcaíno-Peguero’s conviction under 18 U.S.C. § 922(g)(5)(A) for possessing a firearm while unlawfully present in the United States. Assuming without deciding that unlawfully present aliens are protected by the Second Amendment, the court held that the statute is nevertheless constitutional because it fits within the Nation’s historical tradition of disarming persons lacking allegiance to the sovereign.
Circuit Split Identified
Legal Issue
Whether the phrase “the people” in the Second Amendment includes aliens who are illegally or unlawfully present in the United States for purposes of Bruen’s step-one inquiry.
Circuit Positions
Unlawfully present aliens are not part of “the people” and thus have no Second Amendment protection.
Unlawfully present aliens are (or are assumed to be) part of “the people”; courts proceed to Bruen’s second step.
Conflict Summary
The Fourth, Fifth, and Eighth Circuits hold that unlawfully present aliens are outside the scope of “the people” protected by the Second Amendment, while several other circuits — including the First Circuit in this opinion — either hold or assume that such aliens are within that class and therefore analyze § 922(g)(5)(A) under Bruen’s historical-tradition step.