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(d) It shall be unlawful for any person to sell or otherwise dispose of any firearm or ammunition to any person knowing or having reasonable cause to believe that such person-
(1) is under indictment for, or has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year;
(2) is a fugitive from justice;
(3) is an unlawful user of or addicted to any controlled substance (as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802));
(4) has been adjudicated as a mental defective or has been committed to any mental institution;
(5) who, being an alien
(A) is illegally or unlawfully in the United States; or
(B) except as provided in subsection (y)(2), has been admitted to the United States under a nonimmigrant visa (as that term is defined in section 101(a)(26) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(26)));
(6) who?[2] has been discharged from the Armed Forces under dishonorable conditions;
(7) who, having been a citizen of the United States, has renounced his citizenship;
(8) is subject to a court order that restrains such person from harassing, stalking, or threatening an intimate partner of such person or child of such intimate partner or person, or engaging in other conduct that would place an intimate partner in reasonable fear of bodily injury to the partner or child, except that this paragraph shall only apply to a court order that
(A) was issued after a hearing of which such person received actual notice, and at which such person had the opportunity to participate; and
(B)
(i) includes a finding that such person represents a credible threat to the physical safety of such intimate partner or child; or
(ii) by its terms explicitly prohibits the use, attempted use, or threatened use of physical force against such intimate partner or child that would reasonably be expected to cause bodily injury; or
(9) has been convicted in any court of a misdemeanor crime of domestic violence.
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The government argues that it has important “interests in
crime control and public safety.” We agree. “The
[government] has the important government interest of
ensuring the safety of both the public and its police officers.”
Mahoney, 871 F.3d at 882 (citing United States v. Salerno,
481 U.S. 739, 748 (1987); Jackson, 746 F.3d at 965);see also
Binderup, 836 F.3d at 390 (“The stated purpose of the 1968
revision was to curb crime by keeping firearms out of the
hands of those not legally entitled to possess them because of
age, criminal background, or incompetency.” (Fuentes, J.,
concurring in part and dissenting in part) (internal citations
20 UNITED STATES V. TORRES
omitted)); Meza-Rodriguez, 798 F.3d at 673 (“Congress’s
objective in passing § 922(g) was ‘to keep guns out of the
hands of presumptively risky people’ and to ‘suppress[]
armed violence.’” (alteration in original) (quoting United
States v. Yancey, 621 F.3d 681, 683–84 (7th Cir. 2010))).
These government interests are particularly applicable to
those subject to removal. “[T]hose who show a willingness to
defy our law are . . . a group that ought not be armed when
authorities seek them.” Huitron-Guizar, 678 F.3d at 1170. If
armed, unlawful aliens could pose a threat to immigration
officers or other law enforcement who attempt to apprehend
and remove them.
Further,“[unlawful aliens] often live ‘largely outside the
formal system of registration, employment, and identification,
[and] are harder to trace and more likely to assume a false
identity.’” Meza-Rodriguez, 798 F.3d at 673 (quoting
Huitron-Guizar, 678 F.3d at 1170). Therefore, “the ban on
the possession of firearms by [unlawful aliens] is
substantially related to the statute’s general objectives
because such persons are able purposefully to evade detection
by law enforcement.” Id.
Finally, “the government has a[] strong interest in
preventing people who already have disrespected the law
(including, in addition to aliens unlawfully in the country,
felons, § 922(g)(1), fugitives, § 922(g)(2), and those
convicted of misdemeanor crimes of domestic violence,
§ 922(g)(9)) from possessing guns.” Id. Section 922(g)(5) and
other concurrent additions to § 922(g) “reflect[] Congress’s
judgment that persons within these categories ‘may not be
trusted to possess a firearm without becoming a threat to
society.’” Binderup, 836 F.3d at 390 & n.98 (Fuentes, J.,
concurring in part and dissenting in part) (quoting
Scarborough v. United States, 431 U.S. 563, 572 (1977)).
“[T]hese restrictions . . . disarm groups whose members
Congress believes are unable or unwilling to conduct
themselves in conformity with the responsibilities of
citizenship.” Id. at 390–91.
In sum, the government’s interests in controlling crime
and ensuring public safety are promoted by keeping firearms
out of the hands of unlawful aliens—who are subject to
removal, are difficult to monitor due to an inherent incentive
to falsify information and evade law enforcement, and have
already shown they are unable or unwilling to conform their
conduct to the laws of this country. These important
government interests “would be achieved less effectively”
were it not for § 922(g)(5). Fyock, 779 F.3d at 1000.6
Accordingly, § 922(g)(5) survives intermediate scrutiny.
IV. CONCLUSION
The present state of the law leaves us unable to conclude
with certaintywhether aliens unlawfullypresent in the United
States are part of “the people” to whom Second Amendment
protections extend. Nonetheless, assuming that unlawful
aliens do hold some degree of Second Amendment rights,
those rights are not unlimited, and the restriction in
§ 922(g)(5) is a valid exercise of Congress’s authority.
AFFIRMED
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In sum, the government’s interests in controlling crime
and ensuring public safety are promoted by keeping firearms
out of the hands of unlawful aliens—who are subject to
removal, are difficult to monitor due to an inherent incentive
to falsify information and evade law enforcement, and have
already shown they are unable or unwilling to conform their
conduct to the laws of this country. These important
government interests “would be achieved less effectively”
were it not for § 922(g)(5). Fyock, 779 F.3d at 1000.6
Accordingly, § 922(g)(5) survives intermediate scrutiny.
IV. CONCLUSION
The present state of the law leaves us unable to conclude
with certaintywhether aliens unlawfullypresent in the United
States are part of “the people” to whom Second Amendment
protections extend. Nonetheless, assuming that unlawful
aliens do hold some degree of Second Amendment rights,
those rights are not unlimited, and the restriction in
§ 922(g)(5) is a valid exercise of Congress’s authority.
AFFIRMED