Second Amendment “Historical Tradition” Upholds § 922(g)(5)(A) When Modern Immigration Status Creates a “Regulable-Relationship” Rationale

1. Introduction

Moreno Vizcaíno-Peguero (“Vizcaíno”) appealed his conviction under 18 U.S.C. § 922(g)(5)(A), arguing that the statute—prohibiting firearm possession by an alien “illegally or unlawfully in the United States”—violated the Second Amendment as applied to him. Vizcaíno had lived and worked in the United States for years and moved to dismiss the indictment on constitutional grounds. The district court denied that motion, Vizcaíno pleaded guilty, and he appealed.

The central issues on appeal were framed by New York State Rifle & Pistol Ass’n v. Bruen, which requires courts to (1) assess whether the Second Amendment’s “plain text” covers the conduct, and if so (2) require the government to show the regulation is consistent with the Nation’s historical tradition of firearm regulation. The First Circuit resolved the appeal at step two—assuming, without deciding, that the Second Amendment’s text covered Vizcaíno—and held that the government met its historical-tradition burden.

2. Summary of the Opinion

The First Circuit affirmed Vizcaíno’s conviction. It declined to decide whether unlawfully present aliens fall within “the people” protected by the Second Amendment’s text. Citing constitutional avoidance and the cross-amendment implications of defining “the people” (First, Second, Fourth, Ninth, and Tenth Amendments), the court assumed Vizcaíno could invoke the Second Amendment and moved directly to history.

At Bruen step two, guided by United States v. Rahimi, the court held that § 922(g)(5)(A) is “relevantly similar” to historical laws disarming groups viewed as lacking adequate allegiance or a “regulable relationship” to the sovereign. Because the modern “illegal or unlawful presence” category arose with late-19th-century federal immigration control, the court rejected the argument that the government must produce a “distinctly similar” founding-era analogue; relevant similarity suffices. The court also rejected the claim that Rahimi requires an individualized judicial finding that the defendant posed a “credible threat.”

3. Analysis

3.1 Precedents Cited

A. The modern Second Amendment framework

• New York State Rifle & Pistol Ass’n v. Bruen, 597 U.S. 1 (2022)
  Role: Supplies the two-step text-and-history test. The opinion leans heavily on Bruen’s distinction between “distinctly similar” analogues (sometimes demanded for long-persisting societal problems) and “relevantly similar” analogues (especially for newer problems).
• United States v. Rahimi, 602 U.S. 680 (2024)
  Role: Clarifies that step two asks whether a modern law is consistent with the “principles that underpin our regulatory tradition,” focusing on “why and how” a regulation burdens the right. The First Circuit uses Rahimi to reject a rigid requirement of historical “twins” and to rebut the claim that only individualized dangerousness determinations can justify disarmament.
• District of Columbia v. Heller, 554 U.S. 570 (2008)
  Role: Provides interpretive language about “the people” and references to “Americans” and “citizens.” The government used Heller to argue that unlawfully present aliens fall outside the Second Amendment at step one. The First Circuit treats Heller’s reliance on United States v. Verdugo-Urquidez as “considered dicta” that complicates the government’s categorical exclusion theory.
• Ocean State Tactical, LLC v. Rhode Island, 95 F.4th 38 (1st Cir. 2024), cert. denied, 145 S. Ct. 2771 (2025)
  Role: Restates Bruen’s step one inquiry and provides First Circuit articulation of the framework.
• United States v. Minor, 165 F.4th 616 (1st Cir. 2025)
  Role: Supplies First Circuit guidance on de novo review under Bruen and is used to reject Vizcaíno’s Rahimi-based argument that a forward-looking “credible threat” finding is constitutionally required for other § 922(g) categories.

B. “The people” and constitutional avoidance

• United States v. Verdugo-Urquidez, 494 U.S. 259 (1990)
  Role: Defines “the people” (in a Fourth Amendment context) as those with “sufficient connection” to the national community. Heller quotes it. The First Circuit emphasizes that Verdugo-Urquidez left open whether unlawfully present persons may develop sufficient connections—undercutting a categorical exclusion argument.
• Brito v. Garland, 22 F.4th 240 (1st Cir. 2021) (quoting United Nurses & Allied Professionals v. NLRB, 975 F.3d 34 (1st Cir. 2020))
  Role: Invoked for the principle that courts should follow Supreme Court “considered dicta.” The First Circuit uses this to show that Heller’s Verdugo-Urquidez passage cannot be ignored.
• ACLU of Mass. v. U.S. Conf. of Cath. Bishops, 705 F.3d 44 (1st Cir. 2013) and Mills v. Rogers, 457 U.S. 291 (1982)
  Role: Support constitutional avoidance and restraint—used to justify bypassing Bruen step one to avoid unnecessary, broader constitutional holdings about “the people” across multiple amendments.
• Kanter v. Barr, 919 F.3d 437 (7th Cir. 2019) (Barrett, J., dissenting)
  Role: Cited for the idea that a group may be within the Second Amendment’s scope yet still historically subject to disarmament—supporting the opinion’s choice to decide the case at step two.

C. Circuit landscape on § 922(g)(5)(A) and “the people”

The First Circuit maps a split: some circuits hold unlawfully present aliens are not within “the people,” while others assume or hold they may be—yet typically uphold § 922(g)(5)(A) under history.

• United States v. Sitladeen, 64 F.4th 978 (8th Cir. 2023); United States v. Carpio-Leon, 701 F.3d 974 (4th Cir. 2012); United States v. Portillo-Munoz, 643 F.3d 437 (5th Cir. 2011)
  Role: Examples of circuits excluding unlawfully present aliens from “the people.”
• United States v. Escobar-Temal, 161 F.4th 969 (6th Cir. 2025); United States v. Carbajal-Flores, 143 F.4th 877 (7th Cir.), cert. denied, 146 S. Ct. 826 (2025) (mem.); United States v. Perez, 6 F.4th 448 (2d Cir. 2021); United States v. Vazquez-Ramirez, 163 F.4th 706 (9th Cir. 2026) (per curiam); United States v. Duque-Ramirez, 161 F.4th 1237 (10th Cir. 2025); United States v. Jimenez-Shilon, 34 F.4th 1042 (11th Cir. 2022)
  Role: The First Circuit aligns with these courts’ step-two reasoning, particularly the “allegiance/regulable relationship” explanation.

D. Additional authorities supporting the opinion’s doctrinal scaffolding

• Class v. United States, 583 U.S. 174 (2018)
  Role: Confirms that a guilty plea does not necessarily waive the ability to raise a constitutional challenge to the statute of conviction on appeal.
• The Schooner Exchange v. McFaddon, 11 U.S. (7 Cranch) 116 (1812)
  Role: Used to acknowledge that noncitizens present in the U.S. owe a form of temporary allegiance and are subject to U.S. law—yet this does not equate to the deeper “sovereign-subject/citizen” allegiance used historically to allocate arms rights.
• United States v. Huitron-Guizar, 678 F.3d 1164 (10th Cir. 2012)
  Role: Quoted (through Sixth Circuit analysis) for the “outside formal systems of registration, employment, and identification” rationale.
• Carson v. Makin, 596 U.S. 767 (2022) and Washington v. Davis, 426 U.S. 229 (1976)
  Role: Reinforce that some historical disarmament rationales based on religion or race would be unconstitutional today under other constitutional provisions—without negating the Second Amendment historical-tradition inquiry as framed in this case.

3.2 Legal Reasoning

A. Why the court avoided deciding “the people” at Bruen step one

The government urged a step-one victory: that unlawfully present aliens are not part of “the people.” The First Circuit acknowledged the argument’s support in some circuits and in certain language from Heller and Bruen referencing “citizens” and “Americans.” But it emphasized three constraints:

• Verdugo-Urquidez’s “sufficient connection” concept (quoted approvingly in Heller) makes categorical exclusion less “evident,” especially because Verdugo-Urquidez left open that unlawfully present persons might still develop sufficient connections.
• “Considered dicta” doctrine (via Brito v. Garland and United Nurses & Allied Professionals v. NLRB) counsels against ignoring Heller’s Verdugo-Urquidez discussion.
• Constitutional avoidance (ACLU of Mass. v. U.S. Conf. of Cath. Bishops; Mills v. Rogers): because “the people” appears in multiple amendments, deciding its meaning for the Second could spill into First/Fourth/Ninth/Tenth Amendment doctrine unnecessarily.

The result is a strategic narrowing: the court assumed the Second Amendment applied to Vizcaíno and decided the case on history—minimizing collateral doctrinal consequences while still issuing a substantive Second Amendment ruling.

B. Step two: “relevantly similar” analogues—because the immigration-status problem is modern

Vizcaíno argued the government needed “distinctly similar” founding-era laws, reasoning that immigration and naturalization are “enduring societal concerns.” The court disagreed: § 922(g)(5)(A) is keyed to the modern legal distinction between lawful and unlawful presence, a framework that did not exist at the founding and emerged with late-19th-century immigration controls. Therefore, under Bruen, the government’s burden is to show relevantly similar analogues, not close historical “twins.”

C. The “why” dimension: allegiance, sovereign control, and “regulable relationship”

The government offered a set of historical materials (English and early American) showing that arms possession was historically linked to allegiance and membership in the political community. Vizcaíno countered that the historical measures targeted groups perceived as dangerous amid hostilities (Catholics, Native Americans, Loyalists), whereas § 922(g)(5)(A) is “crime control.”

The court reframed the principle underlying the analogues: not mere hostility or violence propensity, but the sovereign’s confidence in its ability to regulate the armed person—i.e., whether the person has the kind of allegiance/relationship that makes them “regulable” by domestic authority. Quoting and adopting sister-circuit reasoning, it emphasized:

• A long tradition “linking the right to bear arms with one’s allegiance to the sovereign” (United States v. Carbajal-Flores).
• Disarmament sometimes applied even where violence was not the concern (e.g., “nonviolent Quakers”; “friendly” Native American tribes), supporting the idea that sovereign control and loyalty could be sufficient “why.”
• Aliens “illegally or unlawfully” present are viewed legislatively as lacking the “formal system of registration, employment, and identification” that supports ordinary regulation and tracing, and as having incentives to evade detection—making them, as a class, harder to regulate.

Thus, the “why” aligns: § 922(g)(5)(A) disarms a category the legislature can view as posing special risk because the sovereign’s ordinary mechanisms of control and accountability are attenuated.

D. The “how” dimension: categorical bans, and restoration through status change

Vizcaíno argued that historical disarmament regimes allowed restoration by taking an oath of allegiance, whereas § 922(g)(5)(A) is a blanket ban with no route back. The court found the distinction overstated and, in any event, not dispositive under Rahimi/Bruen’s “relevantly similar” standard:

• The modern disability is not necessarily permanent: it ends upon acquiring lawful status or citizenship (the opinion references naturalization and lawful immigrant status as the functional analogue to the allegiance mechanisms in older regimes).
• The greater difficulty of restoring rights reflects the modern nature of the problem: a mere oath would not place an unlawfully present person into the modern “formal system” that supplies “regulable relationship.”
• Even if some historical measures focused on sale/transfer rather than possession (e.g., some Native American restrictions), other colonial measures included seizure and disarmament—supporting the broader principle.

E. Addressing “tainted” historical analogues (race/religion) and the role of other constitutional limits

Vizcaíno criticized reliance on analogues rooted in religious or racial classifications. The court accepted that such grounds would be “abhorrent” and unconstitutional today under provisions like the Free Exercise and Equal Protection doctrines (citing Carson v. Makin and Washington v. Davis). But it treated that concern as orthogonal to the Second Amendment question presented: the relevant historical principle is disarmament based on allegiance/foreign sovereign ties and lack of a regulable relationship—not endorsement of race- or religion-based governance.

F. Rahimi does not constitutionalize individualized dangerousness findings

Vizcaíno argued that Rahimi requires a specific, individualized finding that he posed “a credible threat to the physical safety of another.” The court—relying on its own United States v. Minor—rejected that reading. Rahimi’s method is principle-based; it does not impose a universal requirement of judicial dangerousness findings for every disarmament category. Legislatures may disarm “categories of persons thought by a legislature to present a special danger of misuse” (quoting Rahimi’s discussion and Heller’s language).

3.3 Impact

• First Circuit alignment on § 922(g)(5)(A): The decision firmly places the First Circuit with the Sixth, Seventh, Ninth, Tenth, and Eleventh Circuits in upholding § 922(g)(5)(A) under Bruen/Rahimi’s historical-tradition test, even while avoiding definitive resolution of step-one “the people” status.
• Strategic narrowing with doctrinal consequences: By using constitutional avoidance to skip step one, the court preserves flexibility on the cross-amendment meaning of “the people,” limiting precedential spillover into First/Fourth/Ninth/Tenth Amendment contexts.
• Reinforcement of “relevantly similar” for modern regulatory categories: The court’s “new societal concern” framing—because the lawful/unlawful presence category is a post-19th-century legal construct—provides an analytic template for other modern status-based firearms prohibitions where direct founding-era matches are unlikely.
• Limits on Rahimi-based challenges: The opinion strengthens arguments (in this circuit) that Rahimi does not mandate individualized dangerousness findings, which will matter across other categorical firearm prohibitions.
• Potential Supreme Court relevance: The decision highlights the continuing circuit division on whether unlawfully present aliens are part of “the people,” but contributes to a converging consensus that § 922(g)(5)(A) survives step two. That combination—step-one split, step-two convergence—may shape how and when higher review is sought.

4. Complex Concepts Simplified

5. Conclusion

United States v. Vizcaino-Peguero establishes (in the First Circuit) that even assuming unlawfully present aliens can invoke the Second Amendment, 18 U.S.C. § 922(g)(5)(A) survives Bruen/Rahimi scrutiny because it aligns with a historical tradition of disarming categories of persons viewed as lacking sufficient allegiance or a “regulable relationship” to the sovereign. The opinion’s careful use of constitutional avoidance preserves the unsettled cross-amendment “the people” debate while delivering a clear, history-based validation of § 922(g)(5)(A) and a clear limitation on expansive readings of Rahimi that would constitutionalize individualized dangerousness findings for all categorical firearm prohibitions.