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":
