A federal appeals court has ruled that the federal government can pursue illegal gun possession charges against a Mexican immigrant living in the country illegally, nixing the idea that illegal aliens have the same Second Amendment rights as American citizens.
Using the Bruen standard, on May 5, a three-judge panel of the Boston-based 1st Circuit Court of Appeals ruled that 8 U.S.C. § 922(g)(5)(A), which bans illegals from possessing firearms, fits within the history and tradition of this nation’s regulation of firearms rooted in English law and because it was enacted in the context of modern societal concerns about security risks posed immigrants living in this country without permission.
The ruling revolved around a case involving the prosecution of Alberto Rebollar Osorio, a Mexican citizen who had been living in the U.S. illegally for 11 years when he was taken into custody during a traffic stop in Maine. He had a firearm in his vehicle and was subsequently indicted on a charge of possessing a firearm as an “alien illegally or unlawfully in the United States.”
Osorio fought the charge on constitutional grounds, arguing that his possession of a gun was protected by the Second Amendment. A district judge originally dismissed the indictment. However, the 1st Circuit panel reversed that ruling.
“The relevant history reveals a longstanding concern about sovereign control over individuals who, although owing a temporary and local allegiance to this country, which subjects them to laws like § 922(g)(5)(A), belong to groups presumed allegiant to a foreign power and have not formally recognized the government’s authority,” Chief Judge David Barron wrote in the court opinion. “And, we further explained there, § 922(g)(5)(A) fits within that tradition as a measure that aims to reduce the threat posed by a group similarly lacking a regulable relationship with the government.”
Judge Barron further wrote: “Moreover, we recognized in Vizcaíno-Peguero that some of the measures that establish this tradition would now be unconstitutional on grounds other than the Second Amendment. But we explained in doing so that this fact does not disqualify such measures from serving as historical analogs for Second Amendment purposes.”
Ultimately, the historical precedent analysis led the panel to reverse the district court’s ruling.
Note that the 1st Circuit is not the first appeals court to rule that the Second Amendment doesn’t apply to those in the country illegally. In July 2025, the 7th Circuit Court of Appeals ruled that the protections afforded by the Second Amendment apply only to American citizens.
“From the colonies to—most critically—the early Republic, governments consistently conditioned the ability to possess firearms on one’s loyalty to the sovereign,” that ruling stated. “People outside the polity were regularly disarmed unless and until they swore an oath of allegiance. This provides strong historical evidence that the Founders would have considered such regulations compatible with the Second Amendment.
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