Bruen Step Two Sustains 18 U.S.C. § 922(g)(5)(A): Allegiance-Based Historical Analogues and the “Why/How” Inquiry for Firearm Disabilities on Unlawfully Present Aliens

1. Introduction

United States v. Rebollar Osorio (1st Cir. May 5, 2026) addresses a post-New York State Rifle & Pistol Ass'n v. Bruen challenge to 18 U.S.C. § 922(g)(5)(A), which bars firearm possession by an “alien illegally or unlawfully in the United States.” A federal grand jury in Maine indicted Alberto Rebollar Osorio for knowingly possessing a firearm while unlawfully present, in violation of 18 U.S.C. §§ 922(g)(5)(A) and 924(a)(8).

The district court dismissed the indictment on an as-applied Second Amendment theory: it held Rebollar Osorio fell within “the people,” and the government failed to prove § 922(g)(5)(A) aligned with the Nation’s historical tradition of firearm regulation. The government appealed, pressing both steps of Bruen—text (“the people”) and history/tradition.

The First Circuit reversed, relying “largely” on its same-day decision in United States v. Vizcaíno-Peguero, which upheld § 922(g)(5)(A) under Bruen’s historical inquiry.

2. Summary of the Opinion

The First Circuit holds that Rebollar Osorio’s Second Amendment challenge fails at Bruen’s second step (history and tradition). Because the challenge fails on history, the panel declines to decide whether unlawfully present aliens are among “the people” protected by the Second Amendment.

Applying United States v. Rahimi’s articulation of the second-step inquiry—focusing on why and how the regulation burdens the right—the court concludes that § 922(g)(5)(A) “fits comfortably” within historical traditions that empowered governments to disarm categories of persons viewed as posing special dangers of misuse or lacking a regulable allegiance-based relationship with the sovereign.

The dismissal is reversed and the case remanded for further proceedings.

3. Analysis

3.1. Precedents Cited

• New York State Rifle & Pistol Ass'n v. Bruen, 597 U.S. 1 (2022)
  Role: Supplies the controlling two-step methodology (text, then history/tradition) and clarifies that historical analogues need be “relevantly similar,” not “distinctly similar.” The First Circuit uses Bruen to justify moving directly to step two when that resolves the case, and to assess analogical reasoning rather than demand a founding-era twin of the modern statute.
• United States v. Minor, 165 F.4th 616 (1st Cir. 2026)
  Role: Provides the First Circuit’s articulation of the Bruen framework and confirms de novo review for both steps. It reinforces that the government bears the burden at step two.
• United States v. Vizcaíno-Peguero, No. 23-1932, slip op. (1st Cir. May 5, 2026)
  Role: The decisive authority. Rebollar Osorio treats Vizcaíno-Peguero as controlling on the step-two validity of § 922(g)(5)(A), including reliance on English common-law tradition, colonial disarmament measures (Native Americans and Catholics), and founding-era allegiance-conditioning laws. The panel adopts its “why/how” analysis, its view that immigration status presents a “novel societal concern,” and its conclusion that § 922(g)(5)(A) fits within historical traditions when analogues are considered together.
• United States v. Verdugo-Urquidez, 494 U.S. 259 (1990)
  Role: Used by the district court (not the First Circuit) to support the proposition that a person with “sufficient connection” to the U.S. may be part of “the people.” The First Circuit bypasses this issue by resolving the case on Bruen step two.
• District of Columbia v. Heller, 554 U.S. 570 (2008)
  Role: The government cites Heller’s repeated references to “citizens” as rights-bearers, but the First Circuit does not decide the “people” question. Substantively, the court relies on Heller (via Bruen) for the proposition that the Second Amendment codified a pre-existing English-derived right and that certain “longstanding prohibitions” on firearm possession are consistent with the Amendment.
• McDonald v. City of Chicago, 561 U.S. 742 (2010)
  Role: Cited with Heller and Bruen as Supreme Court decisions repeatedly referring to “citizens,” supporting the government’s step-one argument (again, not reached).
• United States v. Rahimi, 602 U.S. 680 (2024)
  Role: Central to the step-two method. The panel quotes Rahimi’s instruction that courts assess “why and how” the regulation burdens the right. It also uses Rahimi to validate consulting secondary sources in historical analysis and to recognize legislative authority to disarm categories of persons thought to present special dangers of misuse, even if the founding generation reduced some political-opponent disarmament practices.
• Range v. Att'y Gen., 69 F.4th 96 (3d Cir. 2023) (Krause, J., dissenting), vacated sub nom., Garland v. Range, 144 S. Ct. 2706 (2024) (mem.)
  Role: Rebollar Osorio invokes Judge Krause’s dissent’s discussion of isolated colonial disarmament incidents (“oddball colonial laws”) to argue such examples are too remote and idiosyncratic. The First Circuit responds that the government’s case does not turn solely on those anecdotes; they sit within a broader evidentiary mosaic (English tradition, colonial restrictions, loyalty oaths) that together supports the statute.

3.2. Legal Reasoning

A. Skipping “the people” when step two is dispositive

The opinion operationalizes a pragmatic sequencing rule: where a Second Amendment challenge to § 922(g)(5)(A) fails at Bruen step two, the court need not decide the contested step-one question (whether unlawfully present aliens are within “the people”). The panel frames this as a restraint principle—avoid deciding a difficult constitutional boundary issue when the historical-tradition inquiry resolves the case. The move also harmonizes with the court’s heavy reliance on United States v. Vizcaíno-Peguero, which took the same approach.

B. The “why” dimension: sovereign control, allegiance, and regulability

Rebollar Osorio tries to narrow the government’s asserted regulatory purpose to “gun violence,” “dangerous behavior,” and “lawbreaking,” and to distinguish historical restrictions as “racist” measures preserving a ruling class. The First Circuit, echoing United States v. Vizcaíno-Peguero, identifies a historically recurring sovereignty-and-allegiance rationale: governments historically regulated arms possession for groups viewed as lacking dependable allegiance or a formalized, “regulable” relationship with the sovereign, including groups “presumed allegiant to a foreign power” and persons who had not formally recognized governmental authority.

On that account, § 922(g)(5)(A) is not merely a generalized crime-control measure; it is a status-linked disability tied to the individual’s location outside the legal framework by which the sovereign can reliably demand compliance and allegiance. The court also addresses a prominent methodological objection: even if some historical measures would be unconstitutional today on other grounds, they may still serve as Second Amendment analogues because the relevant question is whether they illuminate the historical scope of permissible arms regulation under the Amendment.

C. The “how” dimension: categorical bans and pathways to restoration

Rebollar Osorio argues § 922(g)(5)(A) is a permanent, categorical ban unsupported by history. The First Circuit responds with two linked points drawn from United States v. Vizcaíno-Peguero and Bruen:

1. Analogical, not identical, proof: The government need not find a “distinctly similar” founding-era statute. It may rely on a set of “relevantly similar” precursors that collectively establish a tradition encompassing the modern restriction.
2. Restoration through allegiance/relationship: The court treats § 922(g)(5)(A) as comparable in operation to historical disarmament of Catholics and British Loyalists because those restrictions, like § 922(g)(5)(A), were connected to loyalty and the possibility of restoration through recognized alignment with sovereign authority. In other words, the disability is framed not as immutable but as contingent on entering (or re-entering) the relationship and conditions prescribed by the government.

The opinion also emphasizes modernity: § 922(g)(5)(A) was enacted against the background of a modern immigration framework that did not exist until the late 19th century, making a one-to-one founding-era match unlikely. That “novel societal concern” premise allows somewhat looser analogical tolerance while still demanding historically grounded “why/how” similarity.

D. Evidentiary method: use of secondary sources and “waiver” skepticism

The district court discounted certain asserted historical precursors because the government had not produced the laws themselves and relied on secondary accounts. On appeal, the First Circuit rejects the implication that the absence of primary-source production is fatal, citing United States v. Rahimi for the proposition that secondary sources may be considered. It also notes that the government ultimately supplied a citation to the Virginia Catholic-disarmament law in its reply brief, undermining the claim of imprecision.

3.3. Impact

• Strengthened First Circuit pathway to uphold § 922(g)(5)(A): Together with United States v. Vizcaíno-Peguero, the decision gives district courts a clear blueprint for rejecting Bruen challenges to § 922(g)(5)(A) at step two without deciding step one.
• Normalization of allegiance-based analogies: The court’s reliance on loyalty, foreign-allegiance presumptions, and sovereign “regulability” may influence how other status-based firearm prohibitions are defended—particularly where the government argues the regulated group lies outside ordinary legal/political membership structures.
• Broader acceptance of mixed historical records: By permitting reliance on secondary sources and by treating “isolated incidents” as potentially supportive when embedded in a wider tradition, the opinion lowers the practical barriers for the government to assemble a usable historical record.
• Limits on “tainted analogue” objections: The court’s statement (via Vizcaíno-Peguero) that historically discriminatory laws can still function as Second Amendment analogues—even if unconstitutional today on other grounds—may affect future litigation strategy, shifting disputes toward the level of generality at which “why/how” is framed.
• Doctrinal deferral on “the people”: The opinion leaves unresolved (in the First Circuit, for now) whether unlawfully present aliens are within the Second Amendment’s textual scope, potentially preserving a live circuit question while making it less outcome-determinative in § 922(g)(5)(A) cases.

4. Complex Concepts Simplified

Facial vs. as-applied challenge

A facial challenge argues a law is unconstitutional in all its applications. An as-applied challenge argues the law is unconstitutional specifically as applied to a particular person’s circumstances. The district court dismissed on an as-applied basis; the First Circuit reinstated the prosecution.

The Bruen framework (two steps)

1. Text: Does the regulated conduct fall within the Second Amendment’s “plain text” (including whether the person is part of “the people”)?
2. History & tradition: If yes, can the government show the regulation is consistent with the Nation’s historical tradition of firearm regulation?

Here, the First Circuit assumes (without deciding) step one and resolves the case at step two.

“Why” and “how”

From United States v. Rahimi: courts compare (1) why a historical rule burdened arms rights (its purpose or justification) and (2) how it did so (its mechanism, scope, and severity), to determine whether modern regulations are relevantly similar.

Historical analogue / “relevantly similar”

Under Bruen, the government need not find a historical statute identical to the modern law. It must show a sufficiently similar tradition—often by pointing to multiple historical practices that, taken together, support the modern regulation’s purpose and method.

Allegiance and “regulable relationship”

The court’s historical account links firearm restrictions to the sovereign’s ability to demand loyalty and compliance. A group perceived as not having recognized the sovereign’s authority—or as aligned with foreign powers—was historically subject to disarmament. The court treats unlawful presence as fitting that logic in modern form.

5. Conclusion

United States v. Rebollar Osorio cements (with United States v. Vizcaíno-Peguero) a First Circuit rule that § 922(g)(5)(A) survives Bruen scrutiny at step two based on an allegiance-centered historical tradition and Rahimi’s “why/how” test. The court (1) avoids deciding whether unlawfully present aliens are among “the people,” (2) endorses analogical reasoning that accommodates modern immigration realities, (3) permits use of secondary historical sources, and (4) confirms that even historically objectionable regulations may still inform Second Amendment tradition analysis. The immediate effect is to revive the prosecution and to make future § 922(g)(5)(A) challenges substantially harder to sustain in the First Circuit absent a change in Supreme Court direction.