Third Circuit Upholds § 922(g)(5)(B): “Allegiance-Based” Historical Tradition Supports Disarming Nonimmigrant Visa Holders Under Bruen

I. Introduction

In United States v. Diego Aleman-Lozano (3d Cir. Sept. 1, 2026), the Court of Appeals for the Third Circuit affirmed a conviction under 18 U.S.C. § 922(g)(5)(B), which generally prohibits firearm possession by nonimmigrant visa holders (subject to exceptions not applicable here). The defendant, Diego Edgardo Aleman-Lozano, a citizen of El Salvador present on a nonimmigrant visa with work authorization, was found with a pistol (with a loaded sixteen-round magazine) during a Pennsylvania traffic stop. He entered a conditional guilty plea preserving a single issue: whether § 922(g)(5)(B) is facially unconstitutional under the Second Amendment.

The case’s central questions track the modern Second Amendment framework: (1) whether nonimmigrant visa holders are among “the people” protected by the Second Amendment (the threshold inquiry under New York State Rifle & Pistol Ass'n v. Bruen); and (2) if so, whether the firearm prohibition aligns with “the Nation’s historical tradition of firearm regulation” at Bruen’s historical-analogue step.

II. Summary of the Opinion

The Third Circuit (Judge Shwartz) held that § 922(g)(5)(B) does not violate the Second Amendment. The court:

• Assumed without deciding that at least some noncitizens (including nonimmigrant visa holders) are among “the people,” invoking constitutional avoidance and judicial restraint.
• Proceeded to Bruen Step Two and concluded the Government satisfied its burden by identifying a historical tradition—rooted in English common law, colonial practice, and founding-era state measures—of disarming persons regarded as disloyal to the sovereign.
• Upheld § 922(g)(5)(B) as relevantly similar to those historical regulations because it disarms persons with “presumptive allegiance to a foreign state” and parallels historical mechanisms that conditioned arms-bearing on loyalty/oaths.

Judge Phipps concurred in the judgment but argued the majority made an unnecessary and “staggering” assumption at Step One. In his view, the facial challenge fails immediately because at least some nonimmigrant visa holders—such as C-1 transit visa holders—cannot plausibly be part of “the people” (the national political community) and thus are not protected by the Second Amendment.

III. Analysis

A. Precedents Cited

1. The governing Second Amendment framework

• New York State Rifle & Pistol Ass'n v. Bruen (597 U.S. 1 (2022)) supplies the two-step test: Step One asks whether “the Second Amendment’s plain text covers an individual’s conduct,” and Step Two asks whether the restriction is consistent with historical tradition. The court applies Bruen in the now-standard manner: assuming coverage (or declining to decide it) and focusing on historical analogues.
• Wolford v. Lopez (146 S. Ct. 2032 (2026)) is treated as important gloss on Bruen Step Two: it reinforces that analogues need not be “dead ringer[s],” and it emphasizes relevance-by-similarity (why/how burden), while also cautioning against reliance on discriminatory “Black Codes” analogues. The majority uses Wolford both to structure the analogue inquiry and to explain why it does not need a Founding-era “twin” for modern immigration classifications.
• United States v. Rahimi (602 U.S. 680 (2024)) is cited for the principle that the government must identify a historical analogue “consistent with the principles that underpin our regulatory tradition,” and for the “why”/“how” mode of comparison. The concurrence also uses Rahimi (and United States v. Salerno) to restate the high bar for facial challenges.
• District of Columbia v. Heller (554 U.S. 570 (2008)) supplies competing formulations of “the people” and informs the opinion’s caution about adopting a definition that might reverberate across other amendments.

2. Third Circuit methodological anchors

• United States v. Cuevas-Almonte (156 F.4th 319 (3d Cir. 2025)) frames the facial-challenge requirement (“unconstitutional in all of its applications”).
• Range v. Att'y Gen. (124 F.4th 218 (3d Cir. 2024) (en banc) ("Range II")) supplies the “well-established and representative historical analogue, not a historical twin” language used at Step Two.
• Lara v. Comm'r Pa. State Police (125 F.4th 428 (3d Cir. 2025) ("Lara II")) is used for two distinct propositions: (i) courts may consider Founding-era understandings; and (ii) “the people” appears across the Constitution, so inconsistent readings should be avoided.
• Kajmowicz v. Whitaker (42 F.4th 138 (3d Cir. 2022)) supports constitutional avoidance/judicial restraint, justifying the majority’s decision to assume (rather than decide) Step One’s definitional controversy.

3. The cross-circuit landscape on noncitizens and § 922(g)(5)

The opinion carefully situates itself amid an ongoing split (especially in § 922(g)(5)(A) litigation) regarding whether unlawfully present noncitizens are among “the people.” It cites cases adopting the “political community” approach (United States v. Medina-Cantu; United States v. Murillo-Lopez; United States v. Sitladeen), cases recognizing at least some noncitizens as within “the people” under a “national community” concept (United States v. Escobar-Temal; United States v. Carbajal-Flores; and discussion of United States v. Jimenez-Shilon and United States v. Perez), and cases that avoid Step One by assuming coverage and deciding at Step Two (United States v. Vizcaino-Peguero; United States v. Vazquez-Ramirez; United States v. Duque- Ramirez).

The majority aligns with the avoidance approach (assuming coverage) and then upholding the statute at Step Two. The concurrence rejects that choice as unnecessary in a facial challenge.

4. “The people” as a trans-constitutional term of art

• United States v. Verdugo-Urquidez (494 U.S. 259 (1990)) is central for defining “the people” as those in the national community or with sufficient connections. The majority emphasizes the collateral consequences of adopting any definition for other amendments (First, Fourth, Ninth), referencing Heller’s caution and Lara II. The concurrence treats Verdugo-Urquidez as decisive and reads “national community” as the “national political community” (via Wolford quoting Heller).
• The majority also cites non–Second Amendment cases showing many constitutional protections apply to noncitizens in various contexts (e.g., Bridges v. Wixon; INS v. Lopez-Mendoza; Plyler v. Doe; Mathews v. Diaz; Sugarman v. Dougall; plus historical authorities Wong Wing v. United States, Fong Yue Ting v. United States, Yick Wo v. Hopkins), reinforcing the prudential concern that a narrow Step One holding might ripple beyond the Second Amendment.

B. Legal Reasoning

1. Step One: the majority’s avoidance posture

The court declines to choose between competing definitions of “the people” (“political community” versus “national community”/“sufficient connection”). It gives three reasons:

1. Defining “the people” for the Second Amendment could affect other constitutional provisions containing the same phrase.
2. Resolving that definitional dispute is unnecessary to decide this case (because the statute survives Step Two).
3. Because the challenge is facial, a categorical definition might ignore meaningful variation among nonimmigrant visa holders.

On that basis, the court “join[s]” circuits that assume, without deciding, that at least some noncitizens are among “the people,” then proceed to history.

2. Step Two: the core holding—allegiance-based historical tradition

The opinion’s precedential contribution lies in how it operationalizes Step Two for modern immigration-based firearms disabilities: it identifies a historical regulatory principle—disarmament of those deemed disloyal to the sovereign—and treats nonimmigrant visa holders as relevantly similar because they possess “presumptive allegiance to a foreign state.”

(a) The historical materials and the “why” inquiry

The court canvasses:

• English common law (via Blackstone) distinguishing “aliens” and “natural-born subjects,” with rights “much more circumscribed” for aliens and a close connection between land-holding and gun ownership.
• Colonial practice disarming groups refusing to affirm allegiance (e.g., Acadians during the French and Indian War), emphasizing that the rationale was “based solely on loyalty concerns.”
• Revolutionary and Founding-era state laws disarming those refusing loyalty oaths or deemed disaffected, including enactments in Massachusetts, Rhode Island, Virginia, South Carolina, Pennsylvania, North Carolina, and New Jersey.

From those sources, the court extracts the principle: governments historically limited arms-bearing by persons whose allegiance was suspect or unproven.

(b) The “how” inquiry—mechanism and burden

The court then analogizes the mechanism of regulation. Historically, disarmament often persisted “unless and until” the person swore allegiance. Modernly, § 922(g)(5)(B) disarms those “unwilling or unable” to take the oath of allegiance associated with naturalization and loyalty to the United States. In other words, the statute is not treated as a purely status-based stigma but as a modern analogue to a loyalty-screening regime.

The court notes Congress also created limited statutory pathways for lawful possession by some nonimmigrant visa holders (e.g., exceptions in 18 U.S.C. § 922(y)(2)(A)-(D) and waiver authority in 18 U.S.C. § 922(y)(3)), but it stresses those exceptions do not undermine Congress’s constitutional authority to impose the general ban consistent with historical tradition.

3. The concurrence’s alternative: facial challenge fails at Step One

Judge Phipps’s concurrence reframes the case as a facial challenge problem. Citing United States v. Rahimi and United States v. Salerno, he argues Aleman-Lozano must show there is no valid application of § 922(g)(5)(B)—which would require showing every nonimmigrant visa holder is part of “the people.” The concurrence finds that impossible because at least one category—C-1 transit visa holders, who may stay up to 29 days while passing through—cannot develop the “sufficient connection” to the national political community required by United States v. Verdugo- Urquidez (as read through Wolford v. Lopez and District of Columbia v. Heller).

On this view, the facial challenge fails without deciding anything about historically justified disarmament, and without assuming anything about nonimmigrants as a class.

C. Impact

1. Immediate doctrinal effect in the Third Circuit

Aleman-Lozano establishes precedential support that § 922(g)(5)(B) survives a Second Amendment facial challenge under Bruen Step Two through an allegiance/disloyalty historical analogue. Future panels and district courts in the Third Circuit now have a developed historical and analytical template for immigration-status firearms restrictions that are justified as loyalty-based.

2. Interaction with broader § 922(g) litigation

The decision reinforces a trend in post-Bruen jurisprudence—also visible in other circuits’ § 922(g)(5)(A) cases—that “disloyalty to the sovereign” can serve as a historically grounded regulatory principle. That logic may be invoked (with careful attention to fit) in litigation over other status-based prohibitions where the government argues the regulated class is outside the historically trusted “political community” or where the government analogizes to founding-era loyalty oaths.

3. The unresolved “the people” question

The majority’s avoidance approach preserves (rather than resolves) the contested constitutional meaning of “the people” as applied to noncitizens. That leaves room for:

• as-applied challenges by nonimmigrant visa holders who argue they have developed deep ties and present no loyalty-related concern, and
• future cases squarely requiring a Step One definition (particularly if Step Two analogues are weaker or if the statute at issue lacks an allegiance-based rationale).

At the same time, the concurrence provides a ready-made argument for defeating facial challenges to § 922(g)(5)(B) at Step One by pointing to at least one nonimmigrant class (e.g., transit visitors) plainly lacking “sufficient connection.”

4. Limits suggested by the opinion itself

The majority expressly flags concerns, in light of Wolford v. Lopez, about relying on historically discriminatory disarmament regimes (e.g., targeting racial or religious minorities) as analogues. While it notes scholarship suggesting some colonial “Papist” laws were framed as allegiance measures, it declines to rely on those authorities because they are unnecessary to the holding. That caution may shape how litigants and courts curate historical materials in future Second Amendment cases.

IV. Complex Concepts Simplified

• Facial challenge: A claim that a law is unconstitutional in all its applications. The concurrence stresses this is extremely difficult because one valid application defeats the challenge.
• Bruen Step One (“the people” / plain text): Before history, courts ask whether the Second Amendment’s text covers the claimant and conduct. Here, that turns on whether nonimmigrant visa holders are part of “the people.”
• Bruen Step Two (historical tradition / analogues): The government must show modern regulations are consistent with historical traditions. The analogue need not be identical; it must be “relevantly similar,” especially in the reason for the law (“why”) and the way it burdens the right (“how”).
• Allegiance principle: The court treats loyalty to the sovereign as a historical predicate for arms-bearing. Founding-era laws disarmed those suspected of loyalty to an opposing sovereign unless they swore allegiance; § 922(g)(5)(B) is upheld as a modern analogue addressing similar concerns about presumptive foreign allegiance.
• Constitutional avoidance / judicial restraint: Courts sometimes avoid deciding broad constitutional questions if the case can be resolved on narrower grounds. The majority uses this to avoid defining “the people,” while the concurrence argues an even narrower path exists (Step One defeat of a facial challenge).

V. Conclusion

United States v. Diego Aleman-Lozano is a significant Third Circuit precedent sustaining § 922(g)(5)(B) against a Second Amendment facial challenge. The majority assumes, without deciding, that nonimmigrant visa holders may be within “the people,” and then holds the statute constitutional under Bruen Step Two because it fits within a historical tradition of disarming persons whose loyalty to the sovereign is unproven or suspect. The concurrence agrees with affirmance but would reject the facial challenge at Bruen Step One, reasoning that at least some nonimmigrant visa holders (such as C-1 transit visitors) cannot be members of the national political community.

The combined effect is to (i) provide a robust Step Two allegiance-based rationale for § 922(g)(5)(B) in the Third Circuit, while (ii) leaving open—yet sharpening—the future battle over who qualifies as “the people” for Second Amendment purposes, especially in cases brought by noncitizens with varying degrees of connection to the United States.