FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

VICTOR MANUEL TORRES,

Defendant-Appellant.

No. 15-10492

D.C. No.

5:14-cr-00255-EJD-1

OPINION

Appeal from the United States District Court

for the Northern District of California

Edward J. Davila, District Judge, Presiding

Argued and Submitted December 12, 2016

San Francisco, California

Filed January 8, 2019

Before: Sidney R. Thomas,* Chief Judge, N. Randy Smith,

Circuit Judge, and Sharon L. Gleason,**

 District Judge.

Opinion by Judge N.R. Smith

* Following the retirement of Judge Kozinski, Chief Judge Sidney R.

Thomas was randomly drawn to replace him. Ninth Cir. Gen. Order 3.2.h.

ChiefJudge Thomas has read the briefs, reviewed the record, and watched

a video recording of oral argument.

** The Honorable Sharon L. Gleason, United States District Judge for

the District of Alaska, sitting by designation.
2 UNITED STATES V. TORRES

SUMMARY***

Criminal Law

The panel affirmed a conviction for possessing a firearm

while being an alien unlawfully in the United States in

violation of 18 U.S.C. § 922(g)(5)(A).

Assuming without deciding that unlawful aliens in this

country hold some degree of rights under the Second

Amendment, the panel held that § 922(g)(5) is constitutional

under intermediate scrutiny.

COUNSEL

Adam G. Gasner (argued), Law Office of Adam G. Gasner,

San Francisco, California, for Defendant-Appellant.

William James Gullotta (argued), Special Assistant United

States Attorney; Barbara J. Valliere, Chief, Appellate

Division; United States Attorney’s Office, Oakland,

California; for Plaintiff-Appellee.

*** This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.
UNITED STATES V. TORRES 3

OPINION

N.R. SMITH, Circuit Judge:

Assuming that unlawful aliens in this country hold some

degree of rights under the Second Amendment, a statute

prohibiting the possession of firearms by an alien unlawfully

present in the United States withstands constitutional scrutiny

and is a valid exercise of Congress’s authority.

I. BACKGROUND

Defendant Victor Manuel Torres appeals his conviction

for possessing a firearm while “being an alien . . . illegally or

unlawfully in the United States,” in violation of 18 U.S.C.

§ 922(g)(5)(A).1 Torres was born in Mexico in 1985.

Approximately four years later, he, his younger sister, and his

mother moved to San Jose, California, to join Torres’s father,

who had entered the United States a year earlier. Nothing in

the record suggests that either of Torres’s parents ever had an

immigration status through which Torres could qualify for

legal status in the United States. Torres was enrolled in the

school system in San Jose from 1991 until he was expelled in

2000. This expulsion resulted from Torres’s affiliation with

the Sur Santos Pride gang, which he joined at age fourteen.

Because of his gang involvement and attendant trouble at

school, Torres’s parents sent him back to live in Mexico in

1 The discourse relevant to our discussion uses a variety of terms,

such as “unlawful alien,” “illegal alien,” and “undocumented immigrant”

(among several others) to refer to a person who is not a citizen of the

United States and whose presence in the United States is not lawful.

Throughout this opinion, we use the term “unlawful alien” to refer to a

person with this immigration status.
4 UNITED STATES V. TORRES

2002, when he was sixteen years old. After he reached

adulthood, Torres attempted to unlawfully enter the United

States three times in June 2005. During each of his first two

attempts, Torres was apprehended and permitted to

voluntarily return to Mexico. However, he successfully

entered the United States unlawfully on the third attempt.

Upon this reentry, Torres joined his family in San Jose and

began working with his father in landscaping. In 2012, Torres

married a United States citizen in San Jose. However, Torres

never applied for legal status.

In March 2014, a citizen reported to the Los Gatos Police

Department that there was a suspicious pickup truck in a

nearby parking lot and that its driver might be attempting to

sell a stolen bicycle. When officers arrived, the driver’s side

door of the suspicious pickup was open. The officers found

Torres working on something on the bed of the vehicle.

Through the open driver’s side door, officers saw a backpack

and what appeared to be counterfeit license plates. The bed of

the pickup contained “a newer looking Trek road bike.”

Torres told the officers that he owned the bicycle and that he

had received it as a gift in December 2013. However, by

reporting the bicycle’s serial number to dispatch, officers

confirmed that it had been reported stolen two days earlier.

When later confronted with this information, Torres admitted

he knew the bicycle was stolen. Officers requested that Torres

provide identification. Torres responded that it was in his

vehicle. When Torres began to reach into the pickup to

allegedly retrieve his identification, the officers stopped him

out of concern for safety. An officer then looked into the

vehicle and did not see any identification, but the officer

asked if he could look inside Torres’s backpack. Torres

consented. Inside the backpack, the officer found a loaded .22
UNITED STATES V. TORRES 5

caliber revolver, bolt cutters, and what appeared to be two

homemade silencers for the firearm.

Upon this discovery, officers placed Torres under arrest.

In addition to the contents of Torres’s backpack, the

subsequent search of his vehicle revealed a small amount of

methamphetamine and a glass pipe. Officers transported

Torres to a holding facility where they explained his Miranda

rights to him before conducting an interview. In response to

questions about two of his tattoos that indicated a gang

affiliation, Torres admitted to being an active member of Sur

Santos Pride. According to Torres, the stolen bicycle and the

backpack containing the firearm had been placed in his

vehicle by a friend (a fellow gang member), whose identity

Torres refused to reveal.

Subsequently, Torres was federally indicted in the

Northern District of California for one count of being an

unlawful alien in possession of a firearm, in violation of

18 U.S.C. § 922(g)(5)(A).2 Torres moved to dismiss the

indictment, arguing that Second Amendment protections

apply to unlawful aliens and that § 922(g)(5) violates the

Second Amendment. The district court denied the motion,

and the case proceeded to trial, resulting in Torres’s

conviction. The district court imposed a sentence of twentyseven months of incarceration followed by three years of

supervised release.

On appeal, Torres admits that he is an alien unlawfully

present in the United States and that he possessed the firearm

found in his vehicle. However, he contests his conviction by

2 Torres was also charged with several offenses in California state

court, which are not at issue in this case.
6 UNITED STATES V. TORRES

challenging on constitutional grounds the federal statute

under which he was convicted.

II. STANDARD OF REVIEW

We consider challenges to the constitutionality of a

statute de novo. United States v. Garcia, 768 F.3d 822, 827

(9th Cir. 2014).

III. DISCUSSION

TheSecond Amendment to the United States Constitution

guarantees that “the right of the people to keep and bear

Arms, shall not be infringed.” U.S. Const. amend. II. We

must answer, as an issue of first impression in our circuit,

whether this right is violated by a federal criminal statute

prohibiting the possession of a firearm by an alien unlawfully

in this country. The Second Amendment’s application to

unlawful aliens has been widely debated among courts and

scholars in recent years, with analytical divisions even among

those agreeing in result. We proceed to address this issue,

first, by outlining the general framework to analyze

challenges under the Second Amendment. We then review

the approach of other circuits to Second Amendment

challenges to the specific statute at issue. Finally turning to

the parties’ arguments, we assume (without deciding) that the

Second Amendment extends to unlawful aliens, and we

conclude that § 922(g)(5) is constitutional under intermediate

scrutiny.

Central to the rights guaranteed by the Second

Amendment is “the inherent right of self-defense.” District of

Columbia v. Heller, 554 U.S. 570, 628 (2008). However,

while the Second Amendment “guarantee[s] the individual
UNITED STATES V. TORRES 7

right to possess and carry weapons in case of confrontation,”

the right “is not unlimited.” Id. at 592, 626. Congress may

place certain limits on where the right is exercised, how the

right is exercised, and who may exercise the right. See id. at

626–27; United States v. Carpio-Leon, 701 F.3d 974, 977 (4th

Cir. 2012) (“[T]he Second Amendment does not guarantee

the right to possess for every purpose, to possess every type

of weapon, to possess at every place, or to possess by every

person.”); United States v. Huitron-Guizar, 678 F.3d 1164,

1166 (10th Cir. 2012) (“The right to bear arms, however

venerable, is qualified by what one might call the ‘who,’

‘what,’ ‘where,’ ‘when,’ and ‘why.’”). In fact, Congress has

determined that certain groups should be prohibited

altogether from possessing firearms. See 18 U.S.C. § 922(g).

This case concerns such a limitation. Under § 922(g)(5), it is

unlawful for an alien “illegally or unlawfully in the United

States . . . to . . . possess in or affecting commerce, any

firearm.” Torres challenges this prohibition.3 According to

Torres, § 922(g)(5) violates the Second Amendment, because

it completely destroys (rather than limits) Second

Amendment protections as to an entire class of people. See

Heller, 554 U.S. at 628–29.

In United States v. Chovan, we adopted a two-step inquiry

to analyze claims that a law violates the Second Amendment.

3 Torres claims to make facial and as-applied challenges to this

statute. However, we agree with the government that Torres fails to

explain his theory of how § 922(g)(5) is unconstitutional as applied to

him. Therefore, we consider only the facial challenge. See Entm’t

Research Grp., Inc. v. Genesis Creative Grp., Inc., 122 F.3d 1211, 1217

(9th Cir. 1997) (“We review only issues which are argued specifically and

distinctly in a party’s opening brief. We will not manufacture arguments

for an appellant, and a bare assertion does not preserve a claim . . . .”

(citation omitted)).
8 UNITED STATES V. TORRES

735 F.3d 1127, 1136 (9th Cir. 2013). This test “(1) asks

whether the challenged law burdens conduct protected by the

Second Amendment and (2) if so, directs courts to apply an

appropriate level of scrutiny.” Id. Accordingly, we turn to the

first question.

A. Does § 922(g)(5) burden conduct protected by the

Second Amendment?

Under the first Chovan step, we cannot “apply the Second

Amendment to protect a right that does not exist under the

Amendment.” Peruta v. Cty. of San Diego, 824 F.3d 919, 942

(9th Cir. 2016) (en banc), cert. denied sub nom. Peruta v.

California, 137 S. Ct. 1995 (2017). Therefore, the first step

of our analysis requires us to explore the amendment’s reach

“based on a ‘historical understanding of the scope of the

[Second Amendment] right.’” Jackson v. City & Cty. of San

Francisco, 746 F.3d 953, 960 (9th Cir. 2014) (quoting Heller,

554 U.S. at 625). A law does not burden Second Amendment

rights, if it either falls within “one of the ‘presumptively

lawful regulatory measures’ identified in Heller” or regulates

conduct that historically has fallen outside the scope of the

Second Amendment. Id.

The non-exhaustive examples of presumptively lawful

regulations include “longstanding prohibitions on the

possession of firearms by felons and the mentally ill, or laws

forbidding the carrying of firearms in sensitive places such as

schools and government buildings, or laws imposing

conditions and qualifications on the commercial sale of

arms.” Heller, 554 U.S. at 626–27 & n.26; see also United

States v. Vongxay, 594 F.3d 1111, 1115 (9th Cir. 2010).

“These measures comport with the Second Amendment

because they affect individuals or conduct unprotected by the
UNITED STATES V. TORRES 9

right to keep and bear arms.” Binderup v. Attorney Gen. U.S.,

836 F.3d 336, 343 (3d Cir. 2016) (en banc), cert. denied sub

nom. Sessions v. Binderup, 137 S. Ct. 2323 (2017), and cert.

denied sub nom. Binderup v. Sessions, 137 S. Ct. 2323

(2017). However, the government does not argue that

§ 922(g)(5) is a presumptively lawful regulation, so that

question is not before us. Therefore, we focus our inquiry on

whether possession of firearms by unlawful aliens falls within

the “historical understanding of the scope of the [Second

Amendment] right.” Heller, 554 U.S. at 625; see also id. at

626–28 (outlining some of the historical limits on the scope

of the Second Amendment right).

In this case, the question of whether possession of

firearms by unlawful aliens has historically fallen outside the

Second Amendment requires an examination of whether

unlawful aliens are included within the term “the people.”

The text of the Second Amendment plainly states that the

right “to keep and bear Arms” is reserved only to “the

people.” Far from plain, however, is the scope of those who

fall within “the people.” On this question, there are two

Supreme Court cases that provide some guidance: United

States v. Verdugo-Urquidez, 494 U.S. 259 (1990), and Heller.

In Verdugo-Urquidez, the Supreme Court held that a

person who “was a citizen and resident of Mexico with no

voluntary attachment to the United States, and the place

searched was located in Mexico,” was not within “the people”

protected by the Fourth Amendment. 494 U.S. at 274–75. The

Court explained, “the people” is “a term of art employed in

select parts of the Constitution.” Id. at 265. After examining

the text of several amendments, the Court concluded:
10 UNITED STATES V. TORRES

While this textual exegesis is by no means

conclusive, it suggests that “the people”

protected by the Fourth Amendment, and by

the First and Second Amendments, and to

whom rights and powers are reserved in the

Ninth and Tenth Amendments, refers to a

class of persons [(1)] who are part of a

national community or [(2)] who have

otherwise developed sufficient connection

with this country to be considered part of that

community.

Id. (citing United States ex rel. Turner v. Williams, 194 U.S.

279, 292 (1904)).

In Heller, the Supreme Court conducted its “first in-depth

examination of the Second Amendment.” 554 U.S. at 635.

Heller addressed a Second Amendment challenge to “a

District of Columbia prohibition on the possession of usable

handguns in the home.” Id. at 573. The Court engaged in

textual and historical analyses, holding that the Second

Amendment protects an “individual right,” unrelated to

service in a militia, and that the District of Columbia’s

prohibition of usable handguns in the home was

unconstitutional. Id. at 592–94, 635. Throughout its opinion,

the Court described the Second Amendment as “protect[ing]

the right of citizens” and “belong[ing] to all Americans.” Id.

at 581, 595 (emphasis added). The Court also wrote that the

amendment “surely elevates above all other interests the right

of law-abiding, responsible citizens to use arms in defense of

hearth and home.” Id. at 635 (emphasis added).

However, the Heller decision did not resolve who had the

Second Amendment right; Heller resolved if there were an
UNITED STATES V. TORRES 11

individual right per se under the Second Amendment. Id. at

595 (“There seems to us no doubt, on the basis of both text

and history, that the Second Amendment conferred an

individual right to keep and bear arms.”); see also Kachalsky

v. Cty. of Westchester, 701 F.3d 81, 88–89 (2d Cir. 2012)

(explaining that, after the Court concluded the Second

Amendment was meant to protect individual rights, “[t]here

was no need in Heller to further define [its] scope . . . .”).

And, the Heller Court also stated that “the people,” as a term,

“unambiguously refers to all members of the political

community, not an unspecified subset” and block-quoted the

definition of “the people” as quoted supra from VerdugoUrquidez. Heller, 554 U.S. at 580.

Using these two guiding cases, five of our sister circuits

have addressed the question of § 922(g)(5)’s constitutionality;

however, the inconsistency in reasoning among these

courts—though unanimous in ultimate outcome—

demonstrates that Heller and Verdugo-Urquidez do not

provide us a definitive outcome.

In 2011, the Fifth Circuit addressed this question in

United States v. Portillo-Munoz, 643 F.3d 437 (5th Cir.

2011). The defendant in Portillo-Munoz, an unlawful alien,

argued that under Verdugo-Urquidez’s construction of “the

people,” he should be considered as within the scope of the

phrase because he had “developed sufficient connection[s]”

to the United States. Id. at 440. The Fifth Circuit concluded

that, “[w]hatever else the term means or includes, the phrase

‘the people’ in the Second Amendment of the Constitution

does not include aliens illegally in the United States.” Id. at

442. To reach its holding, the Portillo-Munoz court relied

heavily on the Supreme Court’s language from Heller that

described those persons who held a Second Amendment right
12 UNITED STATES V. TORRES

as “members of the political community,” “Americans,” and

“law-abiding, responsible citizens.” Id. at 440. The court

concluded that “aliens who enter or remain in this country

illegally and without authorization” are not included within

the common usage of those terms. Id. Further, the court

explicitly rejected the defendant’s Verdugo-Urquidez

argument, stating that “neither this court nor the Supreme

Court has held that the Fourth Amendment extends to a native

and citizen of another nation who entered and remained in the

United States illegally.” Id. It explained that, even though

“the people” may be in both amendments, that fact does not

“mandate[] a holding that the two amendments cover exactly

the same groups of people.” Id.4

Similarly, the Fourth Circuit in Carpio-Leon held that

“illegal aliens do not belong to the class of law-abiding

members of the political community to whom the protection

of the Second Amendment is given.” 701 F.3d at 981. To

reach this conclusion, the court acknowledged that Heller

held “the people” is a “term of art” and cited to VerdugoUrquidez to define who is included in that term. Id. at 978.

However, the Fourth Circuit concluded that Heller’s specific

use of the phrases “law-abiding,” “Americans,” and

“citizenship” meant the “Supreme Court’s precedent is

therefore not clear on whether ‘the people’ includes illegal

aliens.” Id. at 978–81. It then reasoned that the Heller Court’s

holding that the “core” of the Second Amendment right “is

the right of self-defense by ‘law-abiding, responsible

4 Shortly after the Portillo-Munoz decision, the Eighth Circuit,

without significant discussion, agreed with the Fifth Circuit and held that

“the protections of the Second Amendment do not extend to aliens

illegally present in this country.” United States v. Flores, 663 F.3d 1022,

1023 (8th Cir. 2011) (per curiam).
UNITED STATES V. TORRES 13

citizens’” was a “distinct analysis.” Id. at 978–79 (emphasis

in original) (quoting Heller, 554 U.S. at 635). The Fourth

Circuit then concluded that “[t]he Heller court reached the

Second Amendment’s connection to law-abiding citizens

through a historical analysis, independent of its discussion

about who constitutes ‘the people.’” Id. at 979. It then

conducted a historical inquiry as to whether or not unlawful

aliens were included in the definition of “law-abiding,” and

concluded that “Carpio-Leon’s historical evidence does not

controvert the historical evidence supporting the notion that

the government could disarm individuals who are not lawabiding members of the political community.” Id. at 979–81.

Unlike the Fourth, Fifth, and Eighth Circuits, when

confronted with the instant question, the Seventh Circuit held,

in United States v. Meza-Rodriguez, 798 F.3d 664 (7th Cir.

2015), that Heller’s notation that the Second, First, and

Fourth Amendments all use the phrase “the people,” and its

citation to Verdugo-Urquidez was sufficient to overcome the

Supreme Court’s “passing references” to “law-abiding

citizens” and “members of the political community,” which

did not define “people.” Id. at 669–70. The Seventh Circuit

reasoned that “[a]n interpretation of the Second Amendment

as consistent with the other amendments passed as part of the

Bill of Rights has the advantage of treating identical phrasing

in the same way and respecting the fact that the first ten

amendments were adopted as a package.” Id. at 670.

Accordingly, the Meza-Rodriguez court found the VerdugoUrquidez test was the appropriate mechanism to determine if

an unlawful alien fell within the scope of the Second

Amendment right. Id. (“At a minimum, Verdugo-Urquidez

governs the applicability of the Fourth Amendment to

noncitizens.”). Ultimately, the court held the unlawful alien

had sufficient connections to the United States because he
14 UNITED STATES V. TORRES

had “lived continuously in the United States for nearly all his

life,” but upheld the statute under intermediate scrutiny as an

appropriate exercise of Congressional authority. Id. at

670–73.

Finally, in Huitron-Guizar, the Tenth Circuit, like the

Seventh Circuit, refused to find that Heller’s use of “citizen”

was a conclusive determination that unlawful aliens are not

within the scope of the Second Amendment right, but,

instead, assumed for the purposes of the analysis that (at least

some) unlawful aliens fall within the scope and concluded the

statute passed intermediate scrutiny. 678 F.3d at 1168–70.

The Tenth Circuit’s conclusion was grounded in the fact that

the Heller decision did not purport to decide the scope of the

phrase “the people” in the Second Amendment, but, rather,

“the question in Heller was the amendment’s raison

d’être—doesit protect an individual or collective right?—and

aliens were not part of that calculus.” Id. at 1168. Further, the

Tenth Circuit was concerned with finding that Heller’s

decision excluded unlawful aliens because it could not

conclude “the word ‘citizen’ was used deliberately to settle

the question, not least because doing so would conflict with

Verdugo-Urquidez, a case Heller relied on.” Id. As such,

because of the “large and complicated” question of whether

unlawful aliens were included in the scope of the Second

Amendment, the Tenth Circuit concluded the prudent course

of action was to assume so and, ultimately, concluded

§ 922(g)(5) passed intermediate scrutiny. Id. at 1169–70.

Here, the Government primarily focuses its argument on

the approaches of the Fourth, Fifth, and Eighth Circuits by

arguing that unlawful aliens are not included in “the people.”

First, the government, relying on language from Heller,

argues that historical evidence supports the conclusion that
UNITED STATES V. TORRES 15

unlawful aliens “are not law-abiding, responsible citizens,”

because “the government traditionally had the authority to

disarm people who were not part of the political community,

as well as people who were perceived as potentially disloyal

or dangerous.” Second, the Government argues that postHeller, the Second Amendment right is “connected to

citizenship or membership in the national political

community,” and unlawful aliens are not in those categories.

However, we agree with the Tenth Circuit’s approach,

because we believe the state of the law precludes us from

reaching a definite answer on whether unlawful aliens are

included in the scope of the Second Amendment right. The

Tenth Circuit correctly held that this question is “large and

complicated.” Id. at 1169. Therefore, on this record, we find

it imprudent to examine whether Torres (as an unlawful alien)

falls within the scope of the Second Amendment right. As

such, we assume (without deciding) that unlawful aliens, such

as Torres, fall within the scope of the Second Amendment

right as articulated under Heller and Vergudo-Urquidez and

proceed to the appropriate scrutiny we should give to

§ 922(g)(5). Silvester v. Harris, 843 F.3d 816, 826–27 (9th

Cir. 2016) (“We assume, without deciding, that the regulation

[imposing a waiting period between purchase and delivery of

a firearm] is within the scope of the Amendment and is not

the type of regulation that must be considered presumptively

valid.”); Chovan, 735 F.3d at 1137 (assuming existence of

Second Amendment rights where record was insufficient to

show domestic violence misdemeanants were historically

excluded from the scope of the Second Amendment); United

States v. Chester, 628 F.3d 673, 681–82 (4th Cir. 2010)

(assuming that Second Amendment rights were intact, where

the evidence was inconclusive on that question); cf. Mahoney

v. Sessions, 871 F.3d 873, 879 (9th Cir. 2017) (“[B]ecause of
16 UNITED STATES V. TORRES

the lack of historical evidence in the record before us, we

assume, without deciding, that the UF Policyburdens conduct

falling within the scope of the Second Amendment right.”

(citations omitted)).

B. Does § 922(g)(5) impose a permissible restriction on

the Second Amendment right of an unlawful alien?

Before we can conclude whether § 922(g)(5) imposes a

permissible restriction on the Second Amendment rights of

aliens unlawfully present in the United States, we must first

determine the appropriate level of scrutiny to apply.

1. Level of scrutiny

Although Torres argues that we should apply strict

scrutiny, he acknowledges that the relevant case law has not

made clear what standard is appropriate.5 We have previously

concluded that laws burdening Second Amendment rights

must withstand more searching scrutiny than rational basis

5 Cases from other circuits considering § 922(g)(5) do not

conclusively show the appropriate level ofscrutiny. See Meza-Rodriguez,

798 F.3d at 672–73 (applying review akin to intermediate scrutiny);

Carpio-Leon, 701 F.3d at 982–83 (not reaching the issue of the

appropriate scrutiny under the Second Amendment but applying rational

basis reviewto FifthAmendment challenge, reasoning that unlawful aliens

do not have a fundamental right to bear arms); Huitron-Guizar, 678 F.3d

at 1169 (assuming intermediate scrutiny applies to Second Amendment

claim, based on comparison to challenge made under § 922(g)(8)’s

prohibition for one who is subject to a domestic violence protection order;

but applying rational basis review to equal protection claim, because that

is the appropriate standard under which to scrutinize “[f]ederal statutes

that classify based on alienage”); see generally Flores, 663 F.3d 1022 (not

reaching the question ofthe appropriate level ofscrutiny); Portillo-Munoz,

643 F.3d 437 (same).
UNITED STATES V. TORRES 17

review. Chovan, 735 F.3d at 1137. The level of scrutiny we

apply “depend[s] on (1) ‘how close the law comes to the core

of the Second Amendment right,’ and (2) ‘the severity of the

law’s burden on the right.’” Id. at 1138 (quoting Ezell v. City

of Chicago, 651 F.3d 684, 703 (7th Cir. 2011)). “A law that

implicates the core of the Second Amendment right and

severely burdens that right warrants strict scrutiny.” Silvester,

843 F.3d at 821. However, intermediate scrutiny is

appropriate “if a challenged law does not implicate a core

Second Amendment right, or does not place a substantial

burden on the Second Amendment right.” Jackson, 746 F.3d

at 961. Although not dispositive of the question, we note that

there has been “near unanimity in the post-Heller case law

that, when considering regulations that fall within the scope

of the Second Amendment, intermediate scrutiny is

appropriate.” Silvester, 843 F.3d at 823.

In considering the first question to determine the

appropriate level of scrutiny—the proximity of the challenged

law to “the core of the Second Amendment right”—“Heller

tells us that the core of the Second Amendment is ‘the right

of law-abiding,responsible citizens to use arms in defense of

hearth and home.’” Chovan, 735 F.3d at 1138 (emphasis

added) (quoting Heller, 554 U.S. at 635). Under a different

subdivision of § 922(g), which prohibits firearm possession

for domestic violencemisdemeanants, we held in Chovan that

“Section 922(g)(9) does not implicate this core Second

Amendment right because it regulates firearm possession for

individuals with criminal convictions.” Id. The defendant’s

asserted right to possess a firearm for self-defense was not

within the core of the Second Amendment (as identified in

Heller), because he was not a “law-abiding, responsible

citizen.” Id.(quotingChester, 628 F.3d at 682–83). Likewise,

§ 922(g)(5) does not burden this core right, because the
18 UNITED STATES V. TORRES

prohibition applies only to those who are present in the

United States “illegally or unlawfully.” 18 U.S.C.

§ 922(g)(5)(A) (emphasis added).

Under the second question for determining the level of

scrutiny to apply—“the severity of the law’s burden on the

right” at issue—we found in Chovan a “quite substantial”

burden on Second Amendment rights from a statute imposing

a lifelong “‘total prohibition’ on firearm possession for a

class of individuals.” Chovan, 735 F.3d at 1138 (analyzing

§ 922(g)(9)). We found this burden tempered, however, by

exemptions from the lifetime ban for persons whose

conviction “has been expunged or set aside” or who have

“been pardoned or . . . had [their] civil rights restored.” Id. at

1130, 1138; 18 U.S.C. § 921(a)(33)(B)(ii). Thus, “we applied

‘intermediate’ rather than ‘strict’ judicial scrutiny in part

because section 922(g)(9)’s ‘burden’ on Second Amendment

rights was ‘lightened’ by those mechanisms.” Fisher v.

Kealoha, 855 F.3d 1067, 1071 n.2 (9th Cir. 2017) (citing

Chovan, 735 F.3d at 1138). The burden found in § 922(g)(5)

is similarly tempered, because there is nothing indicating that

the prohibition on firearm possession extends beyond the time

that an alien’s presence in the United States is unlawful.

The factual condition triggering the prohibition in

§ 922(g)(9)—that a person “has been convicted” of a

domestic violence misdemeanor—is phrased in the past tense,

indicating that (once that event occurs) the ban continues for

life, unless one of the enumerated exceptions applies.

Conversely, the factual condition triggering the prohibition in

§ 922(g)(5)—that a person “is illegally or unlawfully in the

United States”—is phrased in the present tense, indicating

that the person affected by that provision may remove himself

from the prohibition by acquiring lawful immigration status.

The burden imposed by § 922(g)(5) is, therefore, tempered.
UNITED STATES V. TORRES 19

Because § 922(g)(5) does not implicate the core Second

Amendment right, and because its burden is tempered, we

proceed to apply intermediate scrutiny. See Fyock v.

Sunnyvale, 779 F.3d 991, 998–99 (9th Cir. 2015)

(“Intermediate scrutiny is appropriate if the regulation at

issue does not implicate the core Second Amendment right or

does not place a substantial burden on that right.”); Chovan,

735 F.3d at 1138.

2. Application of intermediate scrutiny

For a challenged statute to survive intermediate scrutiny,

it must have (1) a “significant, substantial, or important”

government objective; and (2) a reasonable fit between that

objective and the conduct regulated. Chovan, 735 F.3d at

1139. A statute need not utilize “the least restrictive means of

achieving its interest” in order to withstand intermediate

scrutiny. Fyock, 779 F.3d at 1000. Instead, the statute simply

needs to “promote[] a ‘substantial government interest that

would be achieved less effectivelyabsent the regulation.’” Id.

(quoting Colacurcio v. City of Kent, 163 F.3d 545, 553 (9th

Cir. 1998)).

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
UNITED STATES V. TORRES 21

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,

6 Although a prohibition applying to all unlawful aliens may be overinclusive, a statute need not utilize “the least restrictive means of

achieving its interest” in order to withstand intermediate scrutiny. Fyock,

779 F.3d at 1000; see also Huitron-Guizar, 678 F.3d at 1170 (recognizing

that § 922(g)(1)’s prohibition on firearm possession by all those convicted

of felonies is a valid restriction, despite the reality that “[t]he class of

convicted felons, too, includes non-violent offenders”).
22 UNITED STATES V. TORRES

those rights are not unlimited, and the restriction in

§ 922(g)(5) is a valid exercise of Congress’s authority.

7

AFFIRMED.

7 This conclusion also necessarily disposes of Torres’s derivative

equal protection and due process claims. Teixeira v. Cty. of Alameda, 822

F.3d 1047, 1052 (9thCir.), reh’g en banc granted, 854 F.3d 1046 (9thCir.

2016); see also Portillo-Munoz, 643 F.3d at 442 n.4 (explaining that,

because the statute at issue (§ 922(g)(5)) was a federal law to which the

Bill of Rights directly applied (without incorporation), the alien could

pursue the right only under the Second Amendment and could not “look

to the due process clause as an additional source of protection for a right

to keep and bear arms” (citing Graham v. Connor, 490 U.S. 386, 394–95

(1989))).