United States v. Vizcaino-Peguero

• Court: Court of Appeals for the First Circuit
• Decided: May 5, 2026
• Docket: 23-1932
• Status: Published

Opinion

United States Court of Appeals For the First Circuit

No. 23-1932

UNITED STATES,

Appellee,

v.

MORENO VIZCAÍNO-PEGUERO,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO

[Hon. Francisco A. Besosa, U.S. District Judge]

Before

Barron, Chief Judge, Howard and Montecalvo, Circuit Judges.

Jackson B. Whetsel, Assistant Federal Public Defender, with whom Rachel Brill, Federal Public Defender, District of Puerto Rico, and Franco L. Pérez-Redondo, Assistant Federal Public Defender, Supervisor, Appellate Unit, were on brief, for appellant. William A. Glaser, Attorney, Appellate Section, Criminal Division, U.S. Department of Justice, with whom W. Stephen Muldrow, United States Attorney, Mariana E. Bauzá-Almonte, Assistant United States Attorney, Chief, Appellate Division, and Julia M. Meconiates, Assistant United States Attorney, were on brief, for appellee.

May 5, 2026 BARRON, Chief Judge. Moreno Vizcaíno-Peguero

("Vizcaíno") appeals his conviction for violating 18 U.S.C.

§ 922(g)(5)(A), which makes it a crime for "alien[s]" "illegally

or unlawfully in the United States" to possess a firearm tied to

interstate commerce. He contends that § 922(g)(5)(A), as applied

to him, violates the U.S. Constitution's Second Amendment. He

therefore argues that the United States District Court for the

District of Puerto Rico erred in denying his motion to dismiss his

indictment. We affirm.

I.

Vizcaíno was indicted in April 2022 in the District of

Puerto Rico on a single count of violating § 922(g)(5)(A). He

moved to dismiss the indictment in September 2022 on Second

Amendment grounds. The District Court denied the motion in an

April 2023 opinion and order. Vizcaíno pleaded guilty in

June 2023 to violating § 922(g)(5)(A). 1 The District Court

sentenced him to thirty months in prison with a three-year term of

supervised release to follow. Vizcaíno timely appealed his

conviction.

1 Both parties agree that Vizcaíno's guilty plea does not prevent him from challenging the constitutionality of § 922(g)(5)(A) on appeal. See Class v. United States, 583 U.S. 174, 178 (2018).

- 2 - II.

The Second Amendment provides: "A well regulated

Militia, being necessary to the security of a free State, the right

of the people to keep and bear Arms, shall not be infringed."

U.S. Const. amend. II. Under New York State Rifle & Pistol Ass'n

v. Bruen, 597 U.S. 1 (2022), a court faced with a Second Amendment

challenge to a firearm regulation must "first consider whether

'the Second Amendment's plain text covers'" the regulated conduct.

Ocean State Tactical, LLC v. Rhode Island, 95 F.4th 38, 43 (1st

Cir. 2024) (quoting Bruen, 597 U.S. at 17), cert. denied, 145

S. Ct. 2771 (2025). If the Second Amendment's plain text does,

then "the government bears the burden of demonstrating that the

challenged regulation is consistent with this Nation's historical

tradition of firearm regulation." United States v. Minor, 165

F.4th 616, 621 (1st Cir. 2025) (citation modified). Our review

is de novo as to each step of the Bruen framework. See id.

A.

With respect to the first step of the Bruen framework,

the government argued, in response to Vizcaíno's motion to dismiss

his indictment, that the Second Amendment's plain text did not

cover him because -- by virtue of his being an "alien"2 illegally

or unlawfully in this country -- he was not among "the people" to

2 We use the term "alien" throughout this opinion for consistency with the text of 18 U.S.C. § 922(g)(5)(A).

- 3 - whom the Second Amendment refers. Vizcaíno argued otherwise

because he had lived and worked in this country for years.

The District Court determined that it did not need to

resolve the parties' dispute over the meaning of the phrase "the

people" because it concluded that, even if that phrase included

Vizcaíno, his challenge to § 922(g)(5)(A) still failed at the

second step of the Bruen framework. That was so, the District

Court explained, because § 922(g)(5)(A) is consistent with the

"tradition of disarming certain groups seen as threatening or

suspect" to the regulating government.

The government agrees with the District Court that

Vizcaíno's challenge fails at the second step of the Bruen

framework. It nonetheless urges us to affirm his conviction based

on that framework's first step. In support of that contention,

the government argues that, under District of Columbia v. Heller,

554 U.S. 570, 580 (2008), "the term ['the people'] unambiguously

refers to . . . members of the political community." (Alterations

in original.) It goes on to assert that aliens are not part of

that "community."

The government seeks to bolster its position by pointing

to the fact that Heller described the Second Amendment right to

keep and bear arms as belonging to "Americans," e.g., id. at 581,

and "citizens," e.g., id. at 595, 625, 630. It further contends

that, based on the Supreme Court's use of the term "law-abiding

- 4 - citizen" in Bruen to describe those the Second Amendment protects,

see 597 U.S. at 9, 29-30, the Supreme Court there

"confirmed . . . that the right to keep and bear arms belongs only

to ordinary, law-abiding citizens."

Some circuits have relied on logic similar to the

government's in ruling that "the people" to whom the Second

Amendment refers does not include any aliens illegally or

unlawfully in the United States. See United States v. Sitladeen,

64 F.4th 978, 984-85 (8th Cir. 2023) ("[U]nlawfully present aliens

are not within the class of persons to which the phrase 'the

people' refers."); United States v. Carpio-Leon, 701 F.3d 974,

979, 981 (4th Cir. 2012) ("[I]llegal 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."); United States

v. Portillo-Munoz, 643 F.3d 437, 440-42 (5th Cir. 2011) ("[T]he

phrase 'the people' in the Second Amendment of the Constitution

does not include aliens illegally in the United States . . . .").

But that conclusion is not a unanimous one among our sister

circuits. Others faced with Second Amendment challenges to

§ 922(g)(5)(A) have either held or assumed that "the people" does

include aliens who are in this country illegally or unlawfully but

who have lived here for a significant period. See United States

v. Escobar-Temal, 161 F.4th 969, 977 (6th Cir. 2025) ("[T]he Second

Amendment's reference to 'the people' encompasses unlawfully

- 5 - present individuals with sufficient connections to the national

community . . . ."); United States v. Carbajal-Flores, 143 F.4th

877, 882 (7th Cir.) (similar), cert. denied, 146 S. Ct. 826 (2025)

(mem.); United States v. Perez, 6 F.4th 448, 453 (2d Cir. 2021)

(assuming without deciding that aliens unlawfully in the United

States are part of "the people"); United States v. Vazquez-Ramirez,

163 F.4th 706, 709 (9th Cir. 2026) (per curiam) (same); United

States v. Duque-Ramirez, 161 F.4th 1237, 1245 (10th Cir. 2025)

(same); United States v. Jimenez-Shilon, 34 F.4th 1042, 1045-46

(11th Cir. 2022) (same). These circuits have thus proceeded to

Bruen's second step to resolve such challenges. See, e.g.,

Escobar-Temal, 161 F.4th at 978.

In proceeding in that manner, several of those circuits

have noted that in Heller itself the Court relied on its prior

decision in United States v. Verdugo-Urquidez, 494 U.S. 259 (1990),

in explaining that

'the people' seems to have been a term of art employed in select parts of the Constitution . . . . [Its uses] sugges[t] 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 who are part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community.

- 6 - 554 U.S. at 580 (alterations in original) (quoting

Verdugo-Urquidez, 494 U.S. at 265); see, e.g., Carbajal-Flores,

143 F.4th at 881-82. For that reason, these circuits have

concluded, it is not evident how Heller can be read to establish

that, as the government would have it, "the people" to whom the

Second Amendment refers excludes all aliens and so, necessarily,

all aliens who are in this country illegally or unlawfully.3 See,

e.g., Jimenez-Shilon, 34 F.4th at 1044-46.

We see the force of these circuits' reasoning.

Verdugo-Urquidez does not itself hold that an alien who is in this

country "illegally or unlawfully" necessarily lacks sufficient

connection with it to be considered part of "the people" for

purposes of the Fourth Amendment. In fact, in Verdugo-Urquidez,

the Court expressly left open the possibility that such a person

may be able to develop a sufficient connection to be among "the

people" to whom the Fourth Amendments refers. See

Verdugo-Urquidez, 494 U.S. at 271-73.

3Notably, insofar as Vizcaíno's unlawful presence in this country is not in and of itself a bar to his having a sufficient connection to this country to be part of the national community -- and thus "the people" to whom the Second Amendment refers -- the government does not argue that he nonetheless lacks such a connection for some additional reason, such as his having been present here for only a short time or his having failed to have made ties to his community while here. Thus, insofar as unlawful presence alone does not preclude Vizcaíno from being part of "the people," the government's argument disputing his Second Amendment challenge to § 922(g)(5)(A) hinges on the second step of the Bruen framework, not the first.

- 7 - The government does emphasize that we must follow the

Supreme Court's "considered dicta," Brito v. Garland, 22 F.4th

240, 248 (1st Cir. 2021) (quoting United Nurses & Allied

Professionals v. NLRB, 975 F.3d 34, 40 (1st Cir. 2020)), and

directs our attention to the references in Heller and Bruen that

the Second Amendment right belongs to "all Americans," Heller, 554

U.S. at 581, and "citizens," Bruen, 597 U.S. at 30-32. On their

face, however, those references concern only whom the phrase "the

people" includes, not whom that phrase excludes, as the individuals

asserting their Second Amendment rights in each of those cases

were citizens of this country. Bruen, 597 U.S. at 15; Complaint

at 2-4, Parker v. District of Columbia, 311 F. Supp. 2d 103 (D.D.C.

2004) (No. 213-001). And, of course, Heller's discussion of

Verdugo-Urquidez -- which indicates that a person who is not a

citizen of this country must have a "sufficient connection" to it

to be counted as part of "the people," Verdugo-Urquidez, 494 U.S.

at 265, 271-73 -- is itself considered dicta that we are not free

to disregard. See Heller, 554 U.S. at 580; Brito, 22 F.4th at

248.

In any event, the principle of constitutional avoidance

points against our deciding in this case whether "the people" to

whom the Second Amendment refers excludes all persons who are not

citizens of the United States -- or even only such persons who are

here illegally or unlawfully -- if it is not necessary for us to

- 8 - do so to resolve Vizcaíno's challenge to his § 922(g)(5)(A)

conviction. Cf. ACLU of Mass. v. U.S. Conf. of Cath. Bishops, 705

F.3d 44, 52 (1st Cir. 2013) ("[F]ederal courts are not to reach

constitutional issues where alternative grounds for resolution are

available."); Mills v. Rogers, 457 U.S. 291, 305-06 (1982)

(invoking "policy of restraint" to "avoid unnecessary decisions of

constitutional issues"). The dicta in Heller discussing

Verdugo-Urquidez expressly links "the people" in the Second

Amendment to that same phrase in the First, Fourth, Ninth, and

Tenth Amendments. Heller, 554 U.S. at 580. As a result, a holding

about the meaning of "the people" at Bruen's first step would not

necessarily be a holding merely about the meaning of that phrase

in the Second Amendment. It would implicate the meaning of that

phrase in constitutional amendments that Vizcaíno is not himself

relying on in this appeal. And while we acknowledge that resolving

this appeal at Bruen's second step also necessarily decides a

question of constitutional law, prudence guides us to do so on the

ground that confines our focus to the meaning of one constitutional

amendment rather than extends it to the meaning of several of them.

Thus, because we conclude, like the District Court, that

Vizcaíno's Second Amendment challenge to his conviction may be

resolved at the second step of the Bruen framework, we limit the

analysis that follows to a consideration of that step alone. We

emphasize in proceeding in this way, though, that, as then-Judge

- 9 - Barrett explained in her dissent in Kanter v. Barr, even if a

"certain group[] of people" does not fall "entirely outside the

Second Amendment's scope," the question remains as to whether

"history and tradition support[s] Congress's power to strip" that

group "of that right." 919 F.3d 437, 451-52 (7th Cir. 2019)

(Barrett, J., dissenting). In other words, we agree with the

Sixth Circuit that, at least as a matter of logic, "a group may be

historically excluded from the right to bear arms while,

nonetheless, being part of 'the people.'" Escobar-Temal, 161

F.4th at 975.

Accordingly, our decision to bypass the parties' dispute

at Bruen's first step by assuming that Vizcaíno has the better

view of it in no way suggests that he similarly has the better

view at the second step of Bruen's framework. At that step, we

must decide the separate issue of whether § 922(g)(5)(A) "is

consistent with this Nation's historical tradition of firearm

regulation," Bruen, 597 U.S. at 17, which could be the case even

if "the people" includes individuals like Vizcaíno.

B.

As we noted at the outset of our analysis, at the second

step of the Bruen framework, the government, not Vizcaíno, has the

burden to show that § 922(g)(5)(A) comports with this country's

tradition of firearm regulation. Id. The government therefore

- 10 - must identify historical analogues to § 922(g)(5)(A) that suffice

to show that such an encompassing historical tradition exists.

In its post-Bruen decision in United States v. Rahimi,

602 U.S. 680, 692 (2024), the Supreme Court clarified the nature

of the second-step inquiry. It explained that the inquiry

"involves considering whether" the government has shown that "the

challenged regulation is consistent with the principles that

underpin our regulatory tradition" -- that is, "whether the new

law is relevantly similar to laws that our tradition is understood

to permit, applying faithfully the balance struck by the founding

generation to modern circumstances." Id. (citation modified).

Rahimi made clear as well that the "[w]hy and how the regulation

burdens the right are central to this inquiry," as the historical

analogues must be analogous to the challenged regulation in both

why they regulated firearms and how they did so. Id.4

At the same time, Rahimi makes clear that the historical

analogues that the government presents "need not be . . . 'dead

ringer[s]' or . . . 'historical twin[s]'" for the challenged

regulation. Id. (quoting Bruen, 597 U.S. at 30). Even "when a

4Rahimi had not been decided at the time that the District Court denied Vizcaíno's motion to dismiss the indictment on Second Amendment grounds. The parties, however, have fully briefed how Rahimi applies to § 922(g)(5)(A). We thus see no need to remand the pure question of law before us for further consideration in light of Rahimi and proceed to the second step under Bruen, as clarified in Rahimi.

- 11 - challenged regulation does not precisely match its historical

precursors, 'it still may be analogous enough to pass

constitutional muster'" if it "comport[s] with the principles

underlying the Second Amendment." Id. (quoting Bruen, 597 U.S.

at 30).

Put otherwise, the fact that, at Bruen's second step,

there are some differences between the historical analogues on

which the government relies and the challenged regulation does not

preclude that contemporary regulation from fitting within the

tradition of firearm regulation that the claimed historical

precursors establish. See id. at 692, 695-99. A lot therefore

turns on just how similar the proffered historical analogues must

be to the challenged regulation. And, as it happens, the parties

disagree about the degree of similarity that there must be between

the proffered precursors and § 922(g)(5)(A). Accordingly, we

begin our step-two inquiry by addressing that dispute.

1.

Vizcaíno contends that in his specific case the

government must show a "distinctly similar historical regulation"

to § 922(g)(5)(A) to meet its burden at Bruen's second step.

(Quoting Bruen, 597 U.S. at 26.) He argues that this is so because

societal concerns attending immigration and naturalization have

persisted since the founding era, such that § 922(g)(5)(A) does

not address a wholly new societal concern. Rather, in his view,

- 12 - it addresses an enduring societal concern and so one for which a

"distinctly similar" precursor could be expected to be found. See

Bruen, 597 U.S. at 26 ("[W]hen a challenged regulation addresses

a general societal problem that has persisted since the 18th

century, the lack of a distinctly similar historical regulation

addressing that problem is relevant evidence that the challenged

regulation is inconsistent with the Second Amendment.").

The government convincingly argues, however, that

§ 922(g)(5)(A) was enacted against the backdrop of our modern legal

framework for immigration, which disparately regulates classes of

aliens based on whether their presence in the United States is

lawful or not. And, as the government then goes on to correctly

note, that framework did not exist until the late 19th century and

so emerged only well after the Second Amendment's ratification.

See Early American Immigration Policies, U.S. Citizenship &

Immigr. Servs. (July 30, 2020), https://www.uscis.gov/about-

us/our-history/explore-agency-history/overview-of-agency-history

/early-american-immigration-policies [https://perma.cc/L5WR-

XFUX].

Because we agree with the government that such a general

societal concern regarding aliens who are "illegally or unlawfully

in the United States" did not exist until after even the Fourteenth

Amendment to the U.S. Constitution had been ratified, we also agree

with the government that, to satisfy Bruen's second step, the

- 13 - government need not proffer historical analogues that burden the

right to bear arms in a way that is "distinctly similar," Bruen,

597 U.S. at 26, to § 922(g)(5)(A). Rather, the government need

only proffer ones that are "relevantly similar." Id. at 29.

2.

Vizcaíno separately argues that, even if the government

needs to identify historical analogues that are only "relevantly

similar" to § 922(g)(5)(A), it has failed to do so. In proffering

what it contends are "relevantly similar" historical analogues,

the government relies principally on: the English Bill of Rights,

given the distinction that it drew between those who were subjects

of the Crown and those who were not; a colonial-era law disarming

Catholics unless they swore allegiance to the English sovereign

and renounced the authority of the Pope; colonial-era measures

forbidding arming Native Americans; founding-era statutes

disarming British Loyalists, including nonviolent Quakers; and

several early state constitutions that expressly defined the right

to keep and bear arms as belonging to citizens.5 Based on these

materials, the government argues that even prior to the

ratification of the Second Amendment there existed a tradition in

this country of burdening the right to bear arms for the same

5 We consider the historical record assembled by the parties, including primary and secondary sources as well as the extensive body of caselaw on which they rely that reviews historical materials assembled by the parties in those cases.

- 14 - reason that § 922(g)(5) burdens that right (out of concern that

the group subject to the prohibition lacks sufficient ties to the

sovereign that imposed it) and in the same way (via a "blanket

prohibition" on the possession of firearms by a "certain group").

Vizcaíno does not dispute that these historical measures

were in place before and during the founding era or suggest that

the government misdescribes what they provide. Nor does he

suggest that there is some other set of historical analogues that

the government has ignored that, once considered, undermine its

position. Instead, he argues only that the government is wrong

to contend that these asserted historical analogues are

"relevantly similar" to § 922(g)(5)(A).

As we will explain, we agree with the government that

§ 922(g)(5)(a), even though it is not identical to past regulatory

measures, "fits neatly" within the historical tradition of firearm

regulation that the government identifies. Rahimi, 602 U.S. at

698. And, we note, thus far, every circuit to have canvassed the

history of firearm regulations in this country prior to the Second

Amendment's ratification6 -- including by reviewing the specific

historical materials that the government relies on here -- has

Our focus is on pre-ratification history based on the 6

historical record assembled by the parties. In so focusing, we do not purport to limit the Bruen analysis to pre-ratification history. Cf. Bruen, 597 U.S. at 20, 37-38 (recognizing potential relevance of post-enactment history).

- 15 - reached that same conclusion. See United States v. Escobar-Temal,

161 F.4th 969, 978-85 (6th Cir. 2025); United States v.

Carbajal-Flores, 143 F.4th 877, 883-89 (7th Cir.), cert. denied,

146 S. Ct. 826 (2025) (mem.); United States v. Vazquez-Ramirez,

163 F.4th 706, 710-12 (9th Cir. 2026) (per curiam); United States

v. Duque-Ramirez, 161 F.4th 1237, 1247-49 (10th Cir. 2025); United

States v. Jimenez-Shilon, 34 F.4th 1042, 1046-49 (11th Cir. 2021).

As these courts have explained, this historical

tradition traces back to Blackstone, carries forward into the

American colonies, extends into the founding era, and

encompasses -- in why and how it regulated firearms -- the ban on

firearm possession by a category of persons like the category that

§ 922(g)(5)(A) covers. See Escobar-Temal, 161 F.4th at 978-81;

Carbajal-Flores, 143 F.4th at 883-88; Vazquez-Ramirez, 163 F.4th

at 710-11; Duque-Ramirez, 161 F.4th at 1247-48; Jimenez-Shilon, 34

F.4th at 1046-49. Vizcaíno does advance several arguments on

appeal as to why we must conclude otherwise. As we will explain,

those arguments are not persuasive.

3.

Vizcaíno first focuses on the "why" part of Bruen's

second-step inquiry. He contends that § 922(g)(5)(A) is not

relevantly similar to the government's proffered historical

analogues along the "why" dimension because they reveal only a

tradition of firearm regulation that targeted groups -- Native

- 16 - Americans, Catholics, and British Loyalists -- "perceived

dangerous due to ongoing hostilities" with (then-colonial)

governments or "suspected of being a threat to government." By

contrast, he contends, § 922(g)(5)(A) is aimed at "crime control"

and so does not purport to regulate firearm possession based on

the targeted group posing a threat to the sovereign comparable to

the threats posed by the groups historically barred from possessing

firearms.

We do not understand the historical materials on which

the government relies, however, to reveal a tradition of firearm

regulation aimed only at restricting firearm possession by groups

engaged in "ongoing hostilities" with the regulating sovereign.

Rather, we agree with our sister circuits who, after reviewing the

relevant history, have been careful to explain that it reflects "a

long tradition . . . linking the right to bear arms with one's

allegiance to the sovereign." Carbajal-Flores, 143 F.4th at 887;

accord Duque-Ramirez, 161 F.4th at 1247-48 ("There is a tradition,

beginning in England and enduring into the founding era, of

disarming individuals presumed to be loyal to a foreign sovereign

who had not sworn their allegiance via a method prescribed by the

legislature.").

Of course, aliens in this country illegally or

unlawfully do owe a temporary allegiance to it that makes them

subject to our laws. See The Schooner Exchange v. McFaddon, 11

- 17 - U.S. (7 Cranch) 116, 144 (1812). Indeed, that is presumably why

Vizcaíno is invoking the Second Amendment to challenge his

conviction: He does not dispute that the federal statute at issue

otherwise applies to him.

As the Seventh Circuit explained, however, in tracing

the origins of our Second Amendment right, aliens merely present

in the King's dominion were afforded "fewer rights" in the English

common-law tradition than were the King's subjects.

Carbajal-Flores, 143 F.4th at 883. And that was so precisely

because such foreigners lacked the kind of allegiance to the King

that British subjects owed even when those subjects were themselves

foreign-born. Id.; see also 1 William Blackstone, Commentaries

*369-70 (distinguishing between the "natural" and "perpetual"

allegiance owed by subjects of the sovereign and the "local" and

"temporary" allegiance owed by aliens in the sovereign's

territory). This consequence followed from the doctrine of

allegiance, which recognized a reciprocal relationship of loyalty

and protection between subject and sovereign beyond the temporary

allegiance owed by anyone merely present in the King's dominion.

See Blackstone, supra, at *366, *368-72. Thus, the Seventh

Circuit continued, "the English tradition establishes a historical

pattern of disarming persons who lacked allegiance to the

sovereign. Importantly, though, an individual could overcome that

- 18 - limitation by swearing an oath [of allegiance] to the sovereign."

Carbajal-Flores, 143 F.4th at 884.

Evidence from the colonial and founding eras further

demonstrates, as our sister circuits have noted, that "governments

consistently conditioned the ability to possess firearms on one's

loyalty to the sovereign. People outside the polity were

regularly disarmed unless and until they swore an oath of

allegiance." Id. at 886; accord Duque-Ramirez, 161 F.4th at

1247-48; Escobar-Temal, 161 F.4th at 980 (discussing how loyalty

to the government was "the deciding factor for gun ownership"

because the founding generation "maintained the [traditional]

assumption that one should not allow individuals loyal to a foreign

sovereign or unregulable by domestic sources to possess

firearms"). These loyalty-based regulations included measures

that disarmed groups even though the groups did not pose "a

tendency toward violence," such as Quakers and Native American

tribes on friendly terms with the colonists. Escobar-Temal, 161

F.4th at 981.

Thus, there is a "subtle" principle that underpins the

historical evidence that the government cites, which the Sixth

Circuit aptly summarized as follows:

[A] group may have been dangerous enough to disarm in the eyes of the Founders, not because individuals within that group were inherently dangerous . . . but because the group did not have a sufficient connection to

- 19 - the sovereign government to provide that government confidence in its ability to regulate the group's conduct with guns.

Id.

That is not to deny that some of the historical measures

on which the government relies do relate to threats posed by those

belonging to groups engaging in "ongoing hostilities" against the

sovereign seeking to disarm them. See id. A survey of the

historical landscape reveals, however, a distinct concern about

"lack of sovereign control" over groups without a sufficient

relationship to the sovereign seeking to disarm them. Id. And

the resulting firearm regulations, as the Sixth Circuit well

explained, "reflect the importance governments historically placed

on ensuring that those who owned guns within [their] borders" were

known to the government to recognize its authority, id. at 982,

particularly for those "presumed to retain loyalties to a foreign

sovereign," Duque-Ramirez, 161 F.4th at 1248; see also

Carbajal-Flores, 143 F.4th at 884-85 (explaining that Catholics

disarmed in the 17th and 18th centuries were perceived as owing

allegiance to a foreign sovereign).

For these reasons, we do not agree that the government

has failed to meet its burden to identify "relevantly similar"

historical analogues to § 922(g)(5)(A) with respect to "why" they

burdened the right to keep and bear arms. Aliens who are illegally

or unlawfully present in this country are not as a group in any

- 20 - sense associated with "ongoing hostilities" with the United States

in the way that some of the groups targeted by the government's

historical analogues arguably were. But, like the groups targeted

by the historical analogues on which the government relies, such

aliens have presumptive allegiance to a foreign state and,

precisely because of their failure to have obtained a lawful

immigration status, have not established what one of our sister

circuits referred to as "a regulable relationship to the

government" of this country, Escobar-Temal, 161 F.4th at 978.

As was observed by that Circuit, which upheld

§ 922(g)(5)(A) against a Second Amendment challenge, the

provision, in targeting aliens who are in this country illegally

or unlawfully, disarms a group that "exist[s] 'largely outside the

formal system of registration, employment, and identification'"

and so may be "harder to trace." Id. at 984 (quoting United States

v. Huitron-Guizar, 678 F.3d 1164, 1170 (10th Cir. 2012)).

Moreover, those in that group, due to their lack of lawful

immigration status, "have an inherent incentive to evade detection

by law enforcement." Id. We therefore conclude that

§ 922(g)(5)(A) fits within our nation's tradition of firearm

regulation based on the historical analogues on which the

government relies, as it is a regulation that disarms a group of

aliens determined by the legislature to pose a danger because they

- 21 - are "seen as lacking a regulable relationship to the government."

Id. at 978.

4.

Vizcaíno separately argues that § 922(g)(5)(A) is not

"relevantly similar" to historical firearm regulations along the

"how" dimension. Here, he contends that individuals subject to

the Catholic and British Loyalist disarmament measures could get

their rights to possess firearms restored by simply taking an oath

of allegiance. In contrast, he claims, aliens unlawfully present

in the United States are wholly banned from possessing firearms

under § 922(g)(5)(A), with no means of gaining back that right.7

Vizcaíno is right that the provisions disarming

Catholics and British Loyalists allowed individuals to restore

their right to bear arms by swearing their allegiance to the

relevant government authority in the manner prescribed by that

authority. See Carbajal-Flores, 143 F.4th at 884-86. It was

7 Part of the premise of Vizcaíno's argument -- that § 922(g)(5)(A) is an "absolute ban on firearm possession" by aliens illegally or unlawfully in the United States -- appears to be wrong. For example, not all guns are subject to the prohibition. See 18 U.S.C. § 921(a)(3) (excluding "antique firearm[s]" from the statutory definition of "firearm"); id. § 922(g) (flush language) (limiting prohibition to possession of firearms "in or affecting commerce"). In addition, prohibited persons may apply to the Attorney General for relief. Id. § 925(c). We acknowledge that the process for such relief was unavailable until recently, and so Vizcaíno could not have availed himself of it. See 90 Fed. Reg. 13080, 13082-83 (Mar. 20, 2025). Regardless, the possibility of such relief does not change our conclusions here.

- 22 - understood that, by swearing such allegiance, an individual

entered into the requisite regulable relationship with the

government and so was no longer among the group of individuals

targeted by disarmament laws. After all, there was no reason to

presume the group member lacked the allegiance that gave rise to

the concern justifying disarmament once they had pledged such

allegiance. Indeed, such group members were all otherwise here

lawfully and permanently.

Vizcaíno is also right that, in consequence of the effect

of taking the oath under those claimed precursors, § 922(g)(5)(A)

is not a historical twin of them. A person in this country

illegally or unlawfully cannot simply take an oath of allegiance

to this country and, by that act alone, free himself of the

prohibition against possessing a firearm that § 922(g)(5)(A)

imposes.

As we have already explained though, § 922(g)(5)(A) need

not "precisely match its historical precursors," Rahimi, 602 U.S.

at 692, to fall within the tradition of firearm regulation that

they establish. Nor need this measure even be "distinctly

similar" to those earlier ones to do so. Bruen, 597 U.S. at 26.

It need only be "relevantly similar" to them because § 922(g)(5)(A)

addresses a general societal concern that is new, in that

"[f]ederal control of immigrant admissions did not begin until the

late nineteenth century." Escobar-Temal, 161 F.4th at 982.

- 23 - What is significant, then, is that the point of

distinction here along the "how" dimension is directly related to

the new societal concern that relieves the government of the need

to identify measures that otherwise more precisely match

§ 922(g)(5)(A). Section 922(g)'s prohibition against someone

like Vizcaíno possessing a gun terminates once that person gains

United States citizenship or acquires lawful immigrant status.

See 8 U.S.C. § 1448 (naturalization oath of renunciation and

allegiance); cf. 18 U.S.C. § 922(g)(5)(B) (prohibiting firearm

possession by certain aliens admitted under nonimmigrant visas).

That makes it relevantly similar to the measures that came before.

An alien here illegally or unlawfully must do much more than take

an oath of allegiance to this country to be free of the disability

that § 922(g)(5)(A) imposes, unlike the Catholics and British

Loyalists targeted by the claimed historical analogues. But

aliens illegally or unlawfully in the United States would, even

upon taking an oath of allegiance, still "exist 'largely outside

the formal system of registration, employment, and

identification,'" Escobar-Temal, 161 F.4th at 984 (quoting

Huitron-Guizar, 678 F.3d at 1170). And so they still would "lack[]

a regulable relationship to the government." Id. at 978. We

therefore conclude that § 922(g)(5)(A)'s prohibition is relevantly

similar to the proffered regulations disarming Catholics and

British Loyalists in "how" it operates, as it too persists only

- 24 - until the individuals that it targets take steps to ensure that

they have entered into the kind of relationship with the government

that is otherwise lacking.

We do recognize that, as Vizcaíno contends, the

government's proffered analogue regarding the prohibition on

arming Native Americans, insofar as it prohibited sales of firearms

to Native Americans rather than ownership of firearms by Native

Americans, appears to operate differently than § 922(g)(5)(A).

But the Native-American-based analogue just provides support for

the proposition that the founding generation understood the

government to have an interest, permissible under the Second

Amendment, in minimizing firearm ownership among people who

existed outside the sovereign-citizen relationship. See

Escobar-Temal, 161 F.4th at 979 (explaining that Native Americans

were considered "resident aliens" in the American colonies). As

we explained above, wholly apart from the proffered laws banning

the sale of firearms to Native Americans, the government has met

its burden to show a historical tradition of outright prohibition

on firearm ownership by individuals who lack the necessary

relationship of allegiance with the sovereign imposing the ban.

And, in any event, some early American colonies did more to limit

firearm possession by Native Americans than simply prohibiting the

trade of arms with them. See Act of Jan. 22, 1677, reprinted in

2 Records of the Colony of Rhode Island and Providence Plantations,

- 25 - in New England, 1664-1667 561 (John R. Bartlett ed., 1857)(ordering

colonists to seize from Native Americans within the colonial

territory any guns or ammunition that they carried); Ordinance of

July 1, 1656, reprinted in Laws and Ordinances of New Netherland,

1638-1674 234-35 (E.B. O'Callaghan trans., 1868) (forbidding armed

Native Americans from entering the territory and requiring the

disarmament of any who did).

5.

Vizcaíno's next argument is that the government's

attempt to show the requisite tradition of firearm regulation fails

because the government relies on precursors that disarmed entire

classes of people based on characteristics like religion and race

that would be wholly impermissible for the government to rely on

today. In support of that argument, Vizcaíno contends that, for

that reason, we "should be hesitant to accept as an appropriate

analogue any prior law promulgated [based on] general notions of

[the] danger or untrustworthiness" of a class of people.

Vizcaíno is undoubtedly correct that many of the

analogues that are part of the historical tradition outlined above

are predicated on the presumption that certain groups owed

allegiance to a foreign sovereign on grounds that today would be

clearly unconstitutional and, as the government puts it,

"abhorrent." But presuming the existence of such foreign ties on

the basis of religion or race would be unconstitutional today due

- 26 - to limitations that constitutional provisions other than the

Second Amendment impose. See Carson v. Makin, 596 U.S. 767, 787

(2022) ("[T]he Free Exercise Clause forbids discrimination on the

basis of religious status."); Washington v. Davis, 426 U.S. 229,

239 (1976) ("The central purpose of the Equal Protection Clause of

the Fourteenth Amendment is the prevention of official conduct

discriminating on the basis of race."). Yet Vizcaíno does not

suggest to us that there is a Second-Amendment-based problem with

respecting the founding generation's judgment that prohibiting

firearm possession by those with foreign ties who have not sworn

allegiance to the United States is consistent with the right to

bear arms, even when done on a class-wide basis. See Rahimi, 602

U.S. at 698 ("[W]e do not suggest that the Second Amendment

prohibits the enactment of laws banning the possession of guns by

categories of persons thought by a legislature to present a special

danger of misuse . . . ." (citing Heller, 554 U.S. at 626)). We

thus do not see how Vizcaíno's argument on this score undermines

the government's contention that the precursors on which it relies

establishes a historical tradition of firearm regulation that

encompasses § 922(g)(5)(A).

6.

Vizcaíno's final argument about why the government has

failed to show that § 922(g)(5)(A) fits within our nation's history

of firearm regulation draws directly on Rahimi. In this argument,

- 27 - he draws on that precedent to contend that the Second Amendment

requires an individualized finding of dangerousness to disarm a

person -- specifically, a finding that the person poses "a

credible threat to the physical safety of another." (Quoting

Rahimi, 602 U.S. at 702.)

We rejected this very same argument, however, in

addressing an earlier Second Amendment challenge to a federal

firearm regulation. As we explained there, Rahimi makes clear

that, to satisfy the Second Amendment, the government must show

only that the challenged measure comports with "the principles that

underpin our regulatory tradition." 602 U.S. at 692; see Minor,

165 F.4th at 624 ("[I]t is clear that the Court [in Rahimi] was

not holding that a judicial finding of a forward-looking threat is

required as a constitutional matter for other subsections of

922(g)." (citing Rahimi, 602 U.S. at 693)); see also Rahimi, 602

U.S. at 702 (explaining that the Court did not "undertake an

exhaustive historical analysis of the full scope of the Second

Amendment" (citation modified)). And, for the reasons that we

have explained, we conclude that the government has done so here.

C.

In sum, the government has put forth relevantly similar

historical analogues to the firearm regulation that Vizcaíno

challenges along both the "why" and the "how" dimensions that are

central to Bruen's second-step inquiry. Rahimi, 602 U.S. at 692.

- 28 - The government therefore has shown what it must at Bruen's second

step -- namely, that the challenged regulation fits within a

historical tradition of relevantly similar firearm regulations.

It follows that, for this reason alone, Vizcaíno's Bruen-based

Second Amendment challenge to his conviction fails.

III.

For the foregoing reasons, the District Court's decision

is affirmed.

- 29 -