Opinion
Criminal No. 22-168 (FAB)
2023-04-28
UNITED STATES of America, Plaintiff, v. Moreno VIZCAÍNO-PEGUERO [1], Defendant.
Edwin Giovannie Mercado, AUSA, United States Attorneys' Office District of Puerto Rico, San Juan, PR, for Plaintiff. Federal Public Defender Office, Public Defender, San Juan, PR, Carmen Coral Rodriguez-Morales, Public Defender, Federal Public Defender's Office, Hato Rey, PR, for Defendant.
Edwin Giovannie Mercado, AUSA, United States Attorneys' Office District of Puerto Rico, San Juan, PR, for Plaintiff. Federal Public Defender Office, Public Defender, San Juan, PR, Carmen Coral Rodriguez-Morales, Public Defender, Federal Public Defender's Office, Hato Rey, PR, for Defendant.
OPINION AND ORDER
BESOSA, District Judge.
Defendant Moreno Vizcaíno-Peguero ("Vizcaíno") is charged, pursuant to 18 U.S.C. § 922(g)(5), with possessing a firearm and ammunition while "knowing that he was an alien illegally and unlawfully in the United States." (Docket No. 10.) Before the Court is his motion to dismiss, arguing that this law is unconstitutional as applied to him because it broadly restricts alien firearm possession, even for those who are part of "the people," who the Second Amendment guarantees a right to bear arms. (Docket No. 35.) For the reasons that follow, the Court DENIES Vizcaíno's motion.
I. BACKGROUND
The pertinent facts necessary to decide this motion are not disputed by the parties. See United States v. Musso, 914 F.3d 26, 29-30 (1st Cir. 2019). The parties agree that Vizcaíno is not a U.S. citizen, although they diverge on what exactly his immigration status is. (Docket No. 35 at pp. 2-3; Docket No. 37 at p. 3.) The parties also agree that pursuant to a search warrant, the Puerto Rico police searched Vizcaíno's home and seized firearms they found inside. (Docket No. 35 at p. 3; Docket No. 37 at p. 3.)
Vizcaíno was indicted pursuant to 18 U.S.C. § 922(g)(5) for "possession of a firearm and ammunition by an illegal alien." (Docket No. 10 at p. 1.) Vizcaíno moves to dismiss this charge, arguing that the Supreme Court's recent decision, New York State Rifle & Pistol Association, Inc. v. Bruen, 597 U.S. 1, 142 S.Ct. 2111, 213 L.Ed.2d 387 (2022), (hereinafter "Bruen"), which revised the framework for determining the constitutionality of firearm restrictions, makes this law unconstitutional as applied to him. (Docket No. 35.) The government opposed the motion. (Docket No. 37.)
II. LEGAL STANDARD
Federal Rule of Criminal Procedure 12(b)(1) allows a party to "raise by pretrial motion any defense, objection, or request that the court can determine without a trial on the merits." Fed. R. Crim. P. 12(b)(1). "[A] district court may consider a pretrial motion to dismiss an indictment where the government does not dispute the ability of the court to reach the motion and proffers, stipulates, or otherwise does not dispute the pertinent facts." Musso, 914 F.3d at 29-30 (quoting United States v. Weaver, 659 F.3d 353, 355 n* (4th Cir. 2011)).
III. DISCUSSION
The Supreme Court's recent Bruen decision lays out a new test for determining the constitutionality of firearm regulations, rejecting the 'means-end' scrutiny approach developed in the circuit courts of appeals and regularly employed in constitutional analysis. 142 S.Ct. at 2125-30. Bruen instructs courts to employ instead the following two step test:
When the Second Amendment's plain text covers an individual's conduct, the Constitution presumptively protects that conduct. The government must then justify its regulation by demonstrating that it is consistent with the Nation's historical tradition of firearm regulation.Id. at 2129-30.
To determine if the regulation is consistent with historical analogues, courts should look to "two metrics: how and why the regulations burden a law-abiding citizen's right to armed self-defense." Id. at 2132-33 (citing McDonald v. Chicago, 561 U.S. 742, 767, 130 S.Ct. 3020, 177 L.Ed.2d 894 (2010) and District of Columbia v. Heller, 554 U.S. 570, 599, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008)). "[W]hether modern and historical regulations impose a comparable burden on the right of armed self-defense and whether that burden is comparably justified are 'central' considerations when engaging in an analogical inquiry." Id. at 2133 (citations omitted).
Vizcaíno argues that section 922(g)(5) infringes on his constitutional rights because he is a member of "the people" protected by the Second Amendment. (Docket No. 35 at pp. 4-5.) He explains that his presence in this country is known to the immigration authorities, he has been actively seeking legal status, and he has substantial ties to the United States after being here for ten years. Id. Vizcaíno points out that signers of the Articles of Confederation, the Declaration of Independence, and the Constitution included foreign born people, so "the people" must not be restricted to just citizens. Id. at p. 6. Census records from this time period also do not differentiate between those born abroad and others, instead categorizing inhabitants based on gender, age, race, and liberty. Id.
The government responds that pursuant to caselaw and history, "the people" covered by the Second Amendment are "law-abiding citizens," or, at most, members of the "political community," and that Vizcaíno is neither. (Docket No. 37 at pp. 4-11.) The government also indicates that there are historical analogues to section 922(g)(5) sufficient to pass Bruen's step two. Id. at pp. 12-16. Bruen Step One
The criminal statute at issue here states that "[i]t shall be unlawful for any person . . . who, being an alien [who is] is illegally or unlawfully in the United States to . . . possess . . . any firearm or ammunition." 18 U.S.C. § 922(g)(5). Pursuant to Bruen, then, the first question to ask is whether the plain text of the Second Amendment covers possession of firearms by certain aliens. See Bruen, 142 S.Ct. at 2129-30. The text of the Second Amendment of the United States Constitution states:
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. In District of Co lumbia v. Heller, the Supreme Court held that the Second Amendment codifies an individual right to possess and carry weapons through its operative clause, "the right of the people to keep and bear Arms." Heller, 554 U.S. at 577-93, 128 S.Ct. 2783. Whether and to what extent aliens are considered part of "the people" is an open question. Compare United States v. Meza-Rodríguez, 798 F.3d 664, 672 (7th Cir. 2015) ("In the post-Heller world, where it is now clear that the Second Amendment right to bear arms is no second-class entitlement, we see no principled way to carve out the Second Amendment and say that the unauthorized (or maybe all noncitizens) are excluded.") with United States v. Portillo-Muñoz, 643 F.3d 437, 442 (5th Cir. 2011), as revised (June 29, 2011) ("Whatever 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 such as Portillo, and we hold that section 922(g)(5) is constitutional under the Second Amendment.")
In the Fourth Amendment context, the Supreme Court previously stated in dicta that
'[T]he people' seems to have been a term of art employed in select parts of the Constitution . . . . [Its uses] suggest[ ] 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.United States v. Verdugo-Urquídez, 494 U.S. 259, 265, 110 S.Ct. 1056, 108 L.Ed.2d 222 (1990). In examining the Second Amendment specifically, the Heller court cited Verdugo-Urquídez approvingly, stating that " 'the people,' . . . unambiguously refers to all members of the political community, not an unspecified subset." Heller, 554 U.S. at 580, 128 S.Ct. 2783.
Vizcaíno argues that he is a member of "the people" because he has substantial ties to the United States, his presence in this country is known to the immigration authorities, and historical evidence from the time of the founding did not appear to differentiate between those born abroad and others. (Docket No. 35 at pp. 4-6.) The government argues that caselaw and the historical understanding of the right to bear arms show this right belongs only to law-abiding citizens. (Docket No. 37 at pp. 4-11.)
Several of the circuit courts of appeals that confronted this thorny issue before Bruen avoided construing this part of the Constitution and assumed without deciding that aliens may be part of "the people," in order to examine the law under the now defunct 'means-end' scrutiny analysis. See, e.g. United States v. Huitrón-Guízar, 678 F.3d 1164, 1169 (10th Cir. 2012) ("We think we can avoid the constitutional question by assuming, for purposes of this case, that the Second Amendment, as a 'right of the people,' could very well include, in the absence of a statute restricting such a right, at least some aliens unlawfully here—and still easily find § 922(g)(5) constitutional."); see also United States v. Pérez, 6 F.4th 448, 453 (2d Cir. 2021), cert. denied, — U.S. —, 142 S. Ct. 1133, 212 L.Ed.2d 20 (2022); United States v. Torres, 911 F.3d 1253, 1257 (9th Cir. 2019); United States v. Jiménez-Shilon, 34 F.4th 1042, 1045 (11th Cir. 2022). Because Bruen step two can similarly resolve the question presented, the Court will follow the path trod by those circuit courts of appeals and assume without deciding that the Second Amendment applies here and proceed to the next analysis. Cf. Huitrón-Guízar, 678 F.3d at 1169. Bruen Step Two
Bruen instructs that if the conduct is covered by the Second Amendment, "[t]he government must then justify its regulation by demonstrating that it is consistent with the Nation's historical tradition of firearm regulation." Bruen, 142 S.Ct. at 2129-30. Consistency is established by looking at "how and why the regulations burden a law-abiding citizen's right to armed self-defense" and whether historical regulations imposed a comparable and justified burden. Id. at 2133.
Bruen uses the phrase "law-abiding citizen" in reference to this right, but did not squarely address whether people who do not fit that category are covered by the Second Amendment. See Bruen, 142 S.Ct. at 2134 ("It is undisputed that petitioners Koch and Nash—two ordinary, law-abiding, adult citizens—are part of 'the people' whom the Second Amendment protects."); see also Meza-Rodríguez, 798 F.3d at 669 ("While some of Heller's language does link Second Amendment rights with the notions of 'law-abiding citizens' and 'members of the political community,' those passages did not reflect an attempt to define the term 'people.' We are reluctant to place more weight on these passing references than the Court itself did.") (internal citations omitted). Since the Court is assuming without deciding that aliens also have this right, the Court will apply the test to aliens regardless of the references to "law-abiding citizens." Cf. Huitrón-Guízar, 678 F.3d at 1169.
Looking at how the regulation burdens the "right to armed self-defense," section 922(g)(5) is a complete ban on possession by a certain group of the population, persons illegally in the United States. See 18 U.S.C. § 922(g)(5). As to the 'why,' this restriction was part of a set of amendments passed in 1986 "to strengthen the Gun Control Act of 1968 to enhance the ability of law enforcement to fight violent crime and narcotics trafficking, and to improve administration of the Act." H.R. REP. No. 99-495, at 1 (1986), reprinted in 1986 U.S.C.C.A.N. 1327, 1327.
The Senate version of the bill, S. 49, became the law, Firearms Owners' Protection Act, Pub. L. No. 99-308, 100 Stat. 449 (1986).
The government argues that before, during, and after the American revolution there were analogous laws to disarm "non-members of the political community." (Docket No. 37 at p. 12.) It cites as examples Massachusetts and Virginia, who forbade the arming of Native Americans, as well as that Virginia prohibited Catholics from owning arms unless they swore "allegiance to the Hanoverian dynasty and to the Protestant succession," consistent with the English understanding of fealty to the Church of England as a requirement to be a member of the English political community. Id. (quoting Robert H. Churchill, Gun Regulation, the Police Power, and the Right to Keep Arms in Early America: The Legal Context of the Second Amendment, 25 L. & Hist. Rev. 139, 157 (2007)). The government also points out that several colonial governments disarmed persons who refused to "swear an oath of allegiance to the state or the United States." Id. at pp. 12-13 (quoting Saul Cornell & Nathan DeDino, A Well Regulated Right: The Early American Origins of Gun Control, 73 Fordham L. Rev. 487, 506 (2004)).
Vizcaíno argues that the government's burden is not only to show that there were laws analogous to prohibiting possession by an illegal alien, but to an alien such as he, whose presence is known by the government and who is going through the immigration process. (Docket No. 35 at p. 6.)
Looking at the government's historical examples, however, it is clear that there is a tradition of disarming certain groups seen as threatening or suspect to the colonial social order, up to and including those "whose presence is known," as Vizcaíno's is. See Natl. Rifle Ass'n of Am., Inc. v. Bureau of Alcohol, Tobacco, Firearms, and Explosives, 700 F.3d 185, 200 (5th Cir. 2012), abrogated by Bruen, 142 S.Ct. 2111 (" '[T]he founders didn't think government should have the power to take away everyone's guns, but they were perfectly willing to confiscate weapons from anyone deemed untrustworthy,' a group that included law-abiding slaves, free blacks, and Loyalists.") (quoting Adam Winkler, Gunfight: The Battle over the Right to Bear Arms in America 116 (2011)). For right or wrong, "an early feature of the emerging republic was the disarmament of groups associated with foreign elements." Pratheepan Gulasekaram, "the People" of the Second Amendment: Citizenship and the Right to Bear Arms, 85 N.Y.U.L. Rev. 1521, 1548-49 (2010). From the stated purpose of the amendments that included what would become section 922(g)(5), the Court must infer that Congress believed that disarming "aliens illegally or unlawfully in the United States" would enhance law enforcement's ability to fight violent crime and narcotics trafficking. See H.R. REP. No. 99-495, at 1. Congress, thus, to some degree, and without differentiating between them, deemed aliens without legal status to be untrustworthy and in need of disarming, akin to those groups disarmed at the time of the founding. See Natl. Rifle Ass'n, 700 F.3d at 200. "It is surely a generalization to suggest, as courts do . . . that unlawfully present aliens, as a group, pose a greater threat to public safety—but general laws deal in generalities." Huitrón-Guízar, 678 F.3d at 1170 (internal citations omitted).
Section 922(g)(5) is thus a constitutionally sound limit on firearm possession. See also United States v. Carbajal-FIores, 2022 WL 17752395, at *3 (N.D. Ill. Dec. 19, 2022) ("[T]he Court joins the Eleventh Circuit (and others) in concluding that the historical precedent from before, during, and after the founding shows a tradition of regulating noncitizens' right to keep and bear arms comparable to § 922(g)(5)."); United States v. DaSilva, 2022 WL 17242870, at *12 (M.D. Pa. Nov. 23, 2022) ("As discussed, supra, a substantial historical and traditional basis from the pre-Founding Era and Founding Era exists which provides well-established and representative historical analogues to § 922(g)(5) prohibiting an illegal alien from possessing a firearm and ammunition."); United States v. Trinidad-Nova, 671 F.Supp.3d 118 (D.Puerto Rico April 25, 2023) (Besosa, J.) (same).
IV. CONCLUSION
For the reasons set forth above, Vizcaíno's motion to dismiss is DENIED. (Docket No. 35.)
IT IS SO ORDERED.