The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent

About The Volokh Conspiracy Editorial Independence Who we are Books Volokh Daily Email Archives Search DMCA RSS

Guns

Third Circuit Rejects Facial Challenge to Ban on Nonimmigrant Aliens' Gun Possession

Eugene Volokh | 9.2.2026 9:31 AM

Some excerpts from U.S. v. Aleman-Lozano, decided yesterday by Third Circuit Judge Patty Shwartz, joined by Judges Theodore McKee:

Aleman-Lozano is a native and citizen of El Salvador. He entered the United States unlawfully but, in 2017, was granted a nonimmigrant temporary visa with work authorization. Since entering the United States, he has resided with his family, attended school, and worked in Washington, D.C.

In September 2021, a Pennsylvania state trooper pulled Aleman-Lozano over for a traffic violation …. During the stop, the trooper saw a rifle cartridge on the passenger seat. As a result, the trooper obtained a search warrant and found a pistol containing a loaded sixteen-round magazine, which Aleman-Lozano told police he had purchased from an unidentified individual in Maryland. The pistol did not have a serial number….

Aleman-Lozano was prosecuted under 18 U.S.C. § 922(g)(5)(B), which generally makes it illegal for aliens present under a nonimmigrant visa (with some exceptions) to possess guns, and brought a facial challenge to the constitutionality of the provision. Judges Shwartz and McKee assumed without deciding that "the people" in the Second Amendment included noncitizens who were lawfully present, but concluded that "there is historical support for the challenged restriction" based on "analogues from before and at the time of the Second Amendment's ratification":

English common law distinguished between "aliens and natural-born subjects. Natural-born subjects are such as are born within the dominions of the crown of England, that is, within the … allegiance of the king; and aliens, such as are born out of it." Under the common law, "natural-born subjects [had] a great variety of rights, which they acquire[d] by being born within the king's ligeance," while the rights of "aliens … [were] much more circumscribed, being acquired only by residence here, and lost whenever they........

© Reason.com