F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

U N I T E D S T A T E S O F A M E R I C A , Plaintiff-Appellee
,

v

.

V I C T O R M A

N U E L T O R

R E S , D efendant-Appellant. No. 15-10492

D.C. No. 5:14-cr-00255-EJ D-1

OPI NI ON

Appeal from the United States District Court for the Northern District of California Edward J . Davila, District J udg e, Presiding

Arg ued and Submitted December 12, 2016 San F rancisco, California

F iled J a nuary 8, 2019

B efore: Sidney R. Thomas, * Chief J udg e, N. Randy Smith, Circuit J u dg e, and Sharon L . Gleason, * * District J u dg e.

Opinion by

J udg e N.R. Smith

* Fo llo w in g th e retirem en t of Ju d g e Ko zin sk i, Ch ief J u d g e Sid n ey R. T h o m as w as ran d o m ly d raw n t o rep l ace h im

. Nin th Cir. Gen

. Ord er 3 .2 .h

. Ch ief J u d g e T h o m as h as read th e b rief s , rev i ew ed th e reco rd
, an d w atch ed

a v id eo reco rd in g o f

o ral arg u m en t

.

** T h e Ho n o rab l e Sh aro n L

. Gleaso n , Un i ted States District J u d g e f or th e District o f

A lask a, sittin g b y

d esig n atio n

.U N I T E D S T A T E S V

. T O R R E S 2

SUMMARY * * *

Crim inal Law

The panel affirmed a conviction for p ossessing 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 alien s i n this country hold some deg ree of ri g hts under the Second Amendment, the panel held that § 922(g )(5) is constitutional under intermediate scrutiny

.

COUNSEL

A d a m G. G asner (arg

ued), L aw Office of Adam G. Gasner, San F rancisco, California, for Defendant-Appellant.

W illiam J ames Gullotta (arg ued), Special Assistant United States Attorney ; B arbara J

. Valliere, Chief, Appellate Division; United States Attorney ’s Office, Oakland, California; for Plaintiff-Appellee.

*** T h is su m m ary co n stitu

t es n o p art o f th e o p in io n o f th e co urt. It h as b eenp rep ared b y

co urt staf

f f o r th e co n v en i en ce o f

th e read er.U N I T E D S T A T E S V

. T O R R E S 3

OP INION

N.R. SMI TH, Circuit J udg e :

Assuming that unlawful aliens in this country hold some deg ree of r i gh t s under the Second Amendment, a statute prohibiting the possession of f irearms by an a lien unlawfully present in the United States withstands constitutional scrutiny and is a valid ex ercise of Congress’s authority

.

I. BACK G R OUND

D efendant Victor Manuel Torres a ppeals h is conviction for possessing a f

irearm while “being an alien

. . . illeg ally o r

u nlawfully in the United States,” in violation of 18 U

. S

. C

. § 922(g )(5)(A). 1 Torres w as born in Mex ico in 1985. Approx imately four y ears later, he, his y oung er sister, and his mother moved to San J ose, California, to join Torres’s f ather, who had entered the United States a y e a r earlie r

. Nothing in the r ecord sug g ests that either of Torres’s parents ever had an immig ration status throug h which Torres could qualify for leg al status in the United States

. Torres was enrolled in the school sy stem in San J o se from 1991 until he was ex pelled in 2000. This ex pulsion r es u lted from Torres’s affiliation with the Sur Santos Pride g ang , which he joined at ag e fourteen. B ecause of his g ang involvement and attendant trouble at school, Torres’s p ar e n t s s ent him back to live in Mex ico in

1 T h e d isco urse relev an t to o u r d iscu ssio n u ses a v a riety o f term s,

su ch as “ un law f

u l alien ,” “ illeg al alien ,” an d “ u n d o cu m en ted im

m ig ran t” (am o n g sev eral oth ers) to ref er to a p erso n w

h o is n o t a citizen o f th e Un i ted States an d w

h o se p resen ce i n th e Un ited States is n o t law f u l. T h ro u g h o u t th is o p i n i o n , w e u se th e term “ un law f u l alien ” to ref

er to a p erso n w ith th is im m ig ratio n statu s

.U N I T E D S T A T E S V

. T O R R E S 4

2 002, when he was six teen y ears o ld. After he reach e d

a dulthood, Torres attempted to unlawfully enter the Unit e d States three times in J une 2005. During each of his first two attempts, T orres was apprehended and permit t ed to voluntarily return to Mex ico. H owever, he successfully entered the United States unlawfully on the third at t e m pt. Upon this reentry , T o r r es j oined his family in San J ose a nd beg an working with his father in landscaping

. I n 2012, Torres married a United States c itiz en in San J ose. However, Torres never applied for leg al status.

I n March 2014, a citiz en reported to the L os Gatos Police Department that there w as a suspicious pickup truck in a nearby parking lot and that i t s driver mig ht be attempting to sell a stolen bicy cle. W hen officers arrived, the driver’s side door of the suspicious pickup was open. Th e o f f icers f ound Torres working on something on th e bed of the vehicle. Throug h the open driver’s side door, officers saw a backpack and what appeared to be counterfeit license plates. The bed o f the pickup c ontained “a n ewer looking Trek road bike.” Torres told the officers that h e owned the bicy cle a nd that he ha d r e c e i v ed it as a g ift in December 2013. However, b y reporting the bicy cle’s serial number to dispatch, officers confirmed that it had b een reported stolen two day s earlier. W h en later confronted with this information, Torres admitted he knew the bicy cle was stolen. Officers r equested that Torres provide identifica t i o n

. Torres responded that it was in his

ve h i c l e

. When T orres beg an to reach into the p ickup to alleg edly retrieve his identification, the o fficers stopped him
out of concern f

or safety

. A n o f

f i c e r then looked into the vehicl e and d id not see any identification, but the officer asked if he could look inside Torres’s backpack. Tor r e s consented. Inside the backpack, the officer found a loaded .22U N I T E D S T A T E S V

. T O R R E S 5

caliber revolver, bolt cutters, and what appeared to be two homemade silencers for the firearm.

Upon this discovery , officers placed Torres under arrest. I n addition to the contents of Torres’s backpack, the subsequent search of his vehicle revealed a small amount of methamphetamine a n d a g lass pipe. Officers transported Torres to a holding facility where they e x plained his Miranda rig hts to him before c onducting an in t e r view. I n response to questions ab o u t t wo of his tattoos that indicated a g ang affiliation, Torres a dmitted to being a n active member of Sur Santos Pride. According to Torres, the stolen b icy cle and the backp ack containing the firearm had been placed in his vehicle by a f

riend (a f ellow g ang member), w h o s e identity Torres refused to reveal.

Subsequ e n t l y , Torres was federally indicted in the Northern D istrict of California for o n e count of being an unlawful alien in p ossession of a firea r m , in violation o f 18 U.S.C. § 922(g ) (5)(A). 2 Torres moved t o d ismiss the indictment, arguing that Second Amendment p rotections apply to unlawful aliens and that § 9 2 2 ( g)(5) violates the Second Amendment. The district c ourt denied the motion, and the case proceeded to tr i a l, resulting in T o rres’s conviction. The district court imposed a sentence of twenty

seve n m o n ths of incarceration followed by three y e ars o f supervised release.

On appeal, Torres admits that he is a n a l i en unlawfully present in the United States and that he possessed the firearm found in his vehicle. However, h e contests his conviction b y

2 T o rres w as also ch arg ed w it h s e v eral o f f en ses in Calif

o rn ia state

co urt, wh ichare n o t

at issu e inth is case.U N I T E D S T A T E S V

. T O R R E S 6

challeng ing on const i t u t ional g rounds the federal statute under which he was convicted.

II. STANDARD OF REVIEW

W e consider challeng es to the constitutionality of a statute de novo. Un i t e d S tates v. Garcia
, 768 F .3d 822, 827 (9th Cir. 2014).

III. DISCUSSION

T h e Second Amendment to the U nited States Constituti o n g uarantees that “the rig ht of th e p e o p l e to keep and bear Arms, shall not be infri n ged.” U .S. Const. amend. I I

. W e must a n s w e r, as an issue of first impression in our circuit, wh e t h er this rig ht is v iolated by a federal c riminal statute prohibiting the possession o f a firearm by an alien unlawfully in this country

. The Second Amendment’s a p p l ication to unlawful aliens has b een widely debated a m o ng courts a nd scholars in recent y ears, with analy tical divisions even among those ag r e eing in result. W e proceed t o a d dress this issue, first, by outlining the g eneral f ramework to analy

z e challeng es under the Second Amendment

. W e then r eview the a pproach o f other circuits to Second A mendment challenge s t o the specific statute at issue. F inally turning to the parties’ arguments, w e assume (without deciding ) that the Second Amendment ex tends t o u nlawful aliens, and we conclude that § 922(g )(5) is constitutional under intermediate scrutiny

.

Central to the rig hts g u a r anteed by the Second Amendment is “the inherent r ig ht o f self-defense.” District of Columbia v. Heller
, 554 U.S. 570, 628 (2008). However, while t h e S econd Amendment “ g uarantee[ s] the individualU N I T E D S T A T E S V

. T O R R E S 7

rig ht to possess and carry weapons in case of c onfrontation,” the r ig h t “is n ot unlimited.” Id. a t 5 9 2
, 626. Cong ress may place certain limits on where the rig ht is e x e r cised, how the rig ht is ex ercised, and who may ex ercise the rig ht. See id. at 626–27; United States v

. Carpio-Leon
, 701 F .3d 974, 977 ( 4th Cir. 2012) ( “ [ T] he Second Amendment does not g uarantee the rig ht to pos s ess for every purpose, to possess every ty pe of weapon, to possess at every place, or t o p o s sess by every person.”); United S

tates v. Huitron-Guizar
, 678 F. 3 d 1 164, 1166 (10th Cir. 2012) (“The rig h t to bear arms, h owe v e r venerable, is qualified b y what one mig ht call the ‘who,’ ‘what,’ ‘where,’ ‘when ,’ and ‘why .’”). I n fact, Cong ress has determined that certain g roups should be prohib ited altog ether f

rom possessing firearms. See 18 U.S.C. § 922(g ). This case c oncerns such a limitation. Under § 922(g )(5), it is unlawful for an alien “illeg ally or unlawfully in the United States

. . . to

. . . possess in or affecting co m m e r c e, any f i r e a rm.” T orres challeng es this prohibition. 3 According to Torres, § 922(g )(5) violates the Second Amendment, because it co mpletely destroy s ( rather than limits) Second Amendment protections as to an entire c l ass of people. See Heller , 554 U.S. at 628–29.

I n United States v

. Chovan
, we adopted a two-step inquiry
to analy z e claims that a law violates the Second Amendment.

3 T orres claim s to m ak e f acial a n d a s -a p p lied ch allen g es t o th is
statute. Ho w ev er, w e ag ree w ith th e g o v ern m en t th at T o rres fa i ls to

ex p lain h is th eo ry o f h o w § 92 2 (g )(5 ) is un co n stitu tio n al as ap p lied to h im

. T h eref

o re, w e co n sid er o n ly th e f acial ch allen g e. S e e E n t m ’t Resea rch Grp

., In c. v. Gen esis Crea t ive Grp

., In c. , 1 2 2 F.3 d 1 2 1 1
, 1 2 1 7 (9 th Cir. 19 9 7 ) (“ W e rev iew o n ly issu es w h ich are arg u ed sp ecif

ically an d d istin ctly in a p arty ’ s o p en in g b rief . W e w i ll n o t m anu f

actu re arg u

m en ts f o r an ap p ellan t, an d a b are assertio n d o es n o t p reserv e a claim

. . . .” (citatio n o m itted )).U N I T E D S T A T E S V

. T O R R E S 8

735 F .3d 1 127, 1136 (9th Cir. 2013). This t e st “(1) a sks whether the challeng ed law burdens conduct protected by the S ec ond Amendment and (2) if so, directs courts to apply a n appropriate level of scrutiny .” Id

. According ly
, we turn to the first question.

A. Does § 9 2 2(g)(5) burden conduct pro t e c ted by the Second Am endm ent?

Under the first Chovan step, we cannot “apply the Second Amendment to p rotect a rig ht that does not ex is t u n d er the Amendment.” Peruta v. Cty. o f San Diego
, 824 F .3d 919, 942 (9th Cir. 2016) ( en b anc), cert. denied sub n o m

. P e ruta v

. California
, 137 S. Ct. 1995 ( 2017). Therefore, the first step of our analy sis requires us to ex plore the amendment’s reach “based on a ‘historical understanding of the scope o f the [ Second Amendment] rig ht.’” Jackson v. City & Cty. of San Francisco
, 7 46 F .3d 953, 960 (9th Cir. 2 014) (quoting Heller
, 554 U .S. at 625). A law does not burden Second A mendment rig hts, if it e ither falls w ithin “ one of t h e ‘presumptively lawful regulatory measures’ identified in Heller ” or r eg u lates conduct that historically has fal l e n o utside the scope of the Second Amendment. Id.

T h e non-ex haustive ex amples o f presumptively lawfu l
regulations i nclude “long standing prohibitions on the possession of f

irearms by f

e lons and the mentally ill, or laws forbidding the carry

ing of firearms in sensitive places such a s schools and g overnment building s, or laws imposing conditions and qualifications on the commercial sale o f arms.” Heller
, 554 U.S. at 626–27 & n.26; see also United S tates v. V

ongxay , 594 F .3d 1111, 1 115 (9th Cir. 2 01 0 ). “These measures comport with the Second A mendm e nt because they affect individuals or conduct unprotected by theU N I T E D S T A T E S V

. T O R R E S 9

rig ht to keep and bear arms.” Binderup v. Attorney G en. 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 g overnment does not argu e t h at § 9 22(g )(5) is a presumpt i v e l y lawful regu lation, so that question is not before us. Therefore, we focus our inquiry on whether possession of firearms by unlawful aliens falls within the “historical understandin g o f the scope of the [ Second Amendment] r i gh t

. ” Heller
, 554 U.S. at 625; see also id. at 626–28 ( outlining some o f t h e h i storical limits on the scope of the Second Amendment righ t).

I n this ca s e , the question of whether possession o f firearms by unlawful aliens has h istorically fallen outside the Second Amendment requires an ex amin a t i on of whether unlawful aliens are included within the t e r m “the people.” The tex t of the Second Amendment p la i n l y s t ates that the

r ig ht “to keep a

nd bear Arms” is reserved only t o “ t h e people.” F ar from plain, h owever, is th e s cope of those w ho fall within “the people.” On this questi o n , there are two Supreme Court c a ses that provide some g uidance: United States v. Verdugo-Urquidez
, 494 U.S. 259 (1990), and Heller

.

I n Verdugo-Urquidez
, the Su p reme Court held that a pers o n w ho “was a c itiz en and resident of Mex ico with no volunta r y attachment to the United States, and the place searched was located in Mex ico,” was not within “the people” protected by the F ourth Amendment. 494 U.S. at 2 74–75. The Court ex p l a i n e d
, “the people” is “ a term of art employ ed in select parts of the Constitution.” I d. at 265. After ex amining the tex t of several amendments, t he Court concluded:U N I T E D S T A T E S V

. T O R R E S 10

W h ile this tex tual ex eg e sis is by no means conclusive, it sug g ests that “the p e ople” protected by the F ourth Am en dment, a nd b y the F irst and Second Amendmen ts, and to who m rig hts and powers are reserved in the Ninth and Tenth Amendment s, refers to a class o f persons [ ( 1)] who are part of a national community o r [ (2)] who have otherwise develope d sufficient connection with this country to be considered part of that community

.

Id. (citing United States ex rel. Turner v

. W illiams
, 194 U.S. 279, 292 (1904)).

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

ex amination of the Second A mendme n t

. ” 554 U.S. at 635. Heller add r essed a Second Amendment challeng e to “a District of Columbia prohibition on the possession of usable handg uns in the home.” Id. at 573. T he Court en g ag ed in
tex tual and historical analy ses, h olding that the Second Amendment prot e c t s an “individual rig ht,” unrelated to service in a militia, and that the Distric t of Columbia’s prohibition of usable h andg uns in the home was unconstitutional. Id. a t 5 92–94, 635. Throug hout its opinion, the Court described the Second Amendment as “protect[ ing ] the rig h t of citizens ” and “belong [ ing ] to all Americans .” Id. at 581, 5 95 (emphasis added). The Court also wrote that the amendment “surely elevates a bove all other interests the rig ht of law-abiding
, responsible citizens to use arms in defense o f hearth and home.” Id. at 635 (emphasis added).

However, the Heller decision did not resolve who had the Second A mendment rig ht; Heller resolved if there were anU N I T E D S T A T E S V

. T O R R E S 11

i n d i vidual rig ht p er se under the Second Amendment. Id. at 595 (“There seems to us no doubt, o n t h e basis of both tex t and history
, that t he Second Amendment conferred an individual rig ht to keep and bear arms.”); see also Kachalsky

v. Cty. of W

estchester
, 701 F

. 3d 81, 88–89 (2d Cir. 2 012) (ex plainin g t h a t, after the Court concluded the Second Amendment was meant to protect individual rig hts, “[ t] here

was n o need in H

eller to further defin e [ i ts] scope

. . . .”). And, the Heller Court also stated that “ the people,” as a term, “unambig uously refers to a l l m e mbers of the political community
, not an unspecified subset” and block-quoted the definition of “the p eople” as quoted supra from VerdugoUrquidez

. Heller , 554 U.S. at 580.

Using these two g uiding cases, five of our s i s t e r c ircuits have addressed the question o f § 922(g )(5)’s c o n s t i t utionality ; however, the inconsistency in reasoning among th e se

c o u r t s

— t h o u g h u n a n i m o u s i n u l t i m a t e o u t c o m e

— demonstrate s t h at Heller and Verdugo-Urquidez do not provide us a definitive outcome.

I n 2011, the F ifth Circuit a d d ressed this question in United S tates v. Portillo-Munoz
, 6 43 F .3d 437 (5th Cir. 2011). The defendant in Portillo-M u n oz , an unlawful a lien,
argued that under Verdugo-Urquidez ’ s constru c t ion of “the people,” he should be c o n sidered as within the scope o f the phrase because he had “develope d s u f ficient connection[ s] ”
to the United States. Id. at 440. The F ifth Circuit concluded that, “[ w] hatever else the term means or includes, the phrase ‘the people’ in the Second A mendment of the Constitution does n o t i n c lude aliens illeg ally in the U nited States.” Id. at 442. To reach its holding
, t h e Portillo-Munoz court relied heavily on the Supreme Co u r t’s lang uag e from Heller that described those persons who h eld a Second Amendment rig htU N I T E D S T A T E S V

. T O R R E S 12

as “members of the political community ,” “Americans,” a nd “law-abiding
, responsible citiz ens.” Id. at 440. The cou r t concluded that “aliens who enter or remain in this coun try il l eg ally and without authoriz ation” are not included within the common usag e o f those t e r ms. Id. F urther, the court

ex p licitly rejected the defendant’s Verdugo-Urquidez
argument, stating that “neither this court nor the S u p r e me Court h as held that the F ourth Amendment ex tends to a native and citiz en o f another n a tion w ho entered and remained in the United States illeg ally .” I d. I t e x plained that, even thoug h “the people” may be in both amendments, that fa c t d oes not “mandate[ ] a holding that the two amendments cover ex actly the same g roups of people.” Id. 4

Similarly
, the F our t h C i rcuit in Carpio-Leon held that “illeg al a liens do not belong to th e c l a s s of law-abiding members of the political community to whom the protection of the Second Amendment is g iven.” 701 F. 3d at 9 81. T o reach this conclusion, the court ackno w ledg ed that Heller held “the people” is a “term o f art” a n d cited to VerdugoUrquidez to define who is included in t h a t t erm. Id. at 978. However, the F ourth Circuit c o ncluded that H eller ’s specific

u s e of the phrases “ law-abiding ,” “Americans,” a n d “citiz e nship” meant the “ Supreme Court’s prece d e n t is therefore not c le a r o n w hether ‘the people’ includes illeg al aliens.” Id. a t 978–81. I t then reasoned that the Heller Court’s holding that the “core” of the Second Amendmen t rig h t “ is the rig h t o f self-defense by ‘ law-abiding
, responsible

4 Sh o rtly af

ter th e Po rtillo

- Mu n o z d ecisio n , t h e Eig h th Circu it,

w ith o u t s ig n i f

ican t d iscu ssio n , ag reed w ith th e Fif th Circu it an d h eld th at

“ t h e p ro tectio n s o f th e Seco n d A m en d m en t do n o t ex ten d t o alien s illeg ally p resen t in th is co untry .” Un ited Sta tes v. Flo res , 6 6 3 F .3 d 1 0 2 2
, 1 0 2 3 (8 th Cir. 2 0 1 1 ) (p er cu riam ).U N I T E D S T A T E S V

. T O R R E S 13

citiz ens’” was a “distinct analy sis.” Id. at 978–79 (emphasis i n o r i g inal) (quoting Heller
, 5 54 U.S. at 635). The F our t h Circuit then c oncluded that “[ t ] h e Heller court reached the Second Amendment’s connec t ion to law-abiding citiz ens throug h a historical analy sis, independent of its discuss i on about who constitutes ‘ the people.’” Id. at 979. I t then conducted a historical inquiry as to whether or n o t unlawful aliens were included in the definition of “law-abiding ,” a nd concluded that “Carpio-L eon’s h istorical evidence d o e s not controvert the historical evidence supporting the notion t h at the g overnment could disarm individuals who are not lawabiding members of the p olitical community .” Id. at 979–81.

Unlike the F ourth, F ifth, and Eig hth Circuits, when confronted w ith the instant question, the Seventh Circu i t held, in United States v. Meza-Rodriguez
, 798 F

. 3 d 664 (7th Cir. 2015), that Heller ’s n otation that t h e Second, F irst, a nd F ourth Amendments all use the phrase “ th e people,” and its citation to V

erdugo-Urquidez was sufficient to overcome the Supreme Court’s “passi n g references” to “ law-abiding citiz ens” and “members of the political community ,” which did not define “people.” Id

. at 6 6 9

– 70. The Seventh Circuit reasoned that “[ a] n interpretation of the Second A mendment

as consistent w ith the other amendments passed as part of the B ill of Rig hts h as the advantag e of treating identical phrasing in the same way and respecting t h e fact that the first ten amendme n t s w e re adopted as a packag e.” Id. at 670. According l y , t he Meza-Rodriguez court found the VerdugoUrquidez test was the appropriate mechanism to determine if

a n unlawful a lien fell within the scope of the S e c o n d Ame n dment r ig ht. Id. (“At a minimum, Verdugo-Urquidez
governs the applicability of the F ourth Amendment t o noncitiz ens.”). U ltimately
, the c ourt held the unlawful alien had sufficient connectio n s to the United States b ecause heU N I T E D S T A T E S V

. T O R R E S 14

had “lived continuously in the United States for nearly all his life,” b ut u

pheld the statute under intermediate scrutiny as an appropriate ex ercise o f Cong ressional authority

. I d. at 670–73.

F inally
, in Huitron-Guizar
, the T e n th Circuit, like the Seventh Circuit, refused to find that Heller ’ s use of “citiz en”

was a c onclusive determination that unlawful aliens are not withi n t he scope of the Second Amendment r ig ht, but, instead, assumed for the purposes of the analy sis that ( at least some) unlawful aliens fall within the scope and concluded the
statute p assed intermediate scrutiny

. 678 F .3d at 1168–70. The Tenth Circuit’s conclusion was g rounded in the fact that the Heller decision did not purport to decide the scope of the phrase “the people” in the Second Amendment, but, r ather, “the question in Heller was the amendment’ s raison d’être

— d o e s i t p rotect an individual o r collective rig ht? —and aliens were not part of that calculus.” Id. at 1168. F urther, the Tenth Circuit was c oncerned with finding that H e l l er ’s d e c i sion ex c luded unlawful aliens because it c ould not conclude “the word ‘ citiz e n’ w as used d eliberately to settle the question, not least b ecause d o i n g so would conflict with Verdugo-Urquidez
, a case Heller relied on.” Id. As s u ch
, because of the “larg e and complica t e d ” question of whether

u n l a wf u l aliens were included in the scope of the Second Amendment, the Tenth Circuit concluded the prudent course of a ction was to ass u me so and, ultimately
, concluded § 922(g )(5) passed intermediate scrutiny

. Id. at 1169–70.

Here, the Government primarily focuses its arg ument on the a p p r oaches of the F ourth, F ifth, and Eig hth Circuits b y arguing that un lawful aliens are not included in “the people.” F i rst, the g o vernment, relying o n lang uag e from Heller
, argues that historical evidence s u p p orts the conclusion thatU N I T E D S T A T E S V

. T O R R E S 15

unlawful aliens “ a re not law-abiding
, responsible citiz ens,” b ecause “the g overnment traditionally had the authority t o disarm people who were not part of the political community
, as well as people who were perceived as potentially disloy al

or dang erous.” Second, the G o vernment argues that postHeller
, the Second Amendment rig ht is “connected to citiz enship o r membe rs h i p in the national political community ,” and unlawful aliens are n ot in those categ o ries.

However, we a g r e e w i th the Tenth Circuit’s approach, because we believe the state o f the law precludes us from reaching a definite a

nswer o n w hether unlawful aliens a re included in the scope o f t h e Second Amendment r ig ht. The Tenth Circuit correctly held that this q uestion is “larg e a

nd complicated.” Id. at 1 169. T h erefore, on this record, we find it imprudent to ex amine whether Torres (as a n unlawful alien) falls within the scope of the Second Amendment rig ht. A s such, w e assume (without deciding ) that unlawful aliens, such

as Torres, fall within the scope of the S e cond A mendment rig ht as articulated under H eller and Vergudo-Urquidez a nd proceed to the appropriate scrutiny we should g ive to § 922(g )(5). S

ilvester v. Harris
, 8 43 F .3d 816, 826–27 (9th Cir. 2016) (“W e assume, without deciding
, that the regulation [ imposing a waiting p eriod between purchase and delivery o f

a firearm] is within the scope of the Amendment a nd is not the ty pe of regulation that must b e considered p resumptively valid.”); Chovan
, 735 F .3d a t 1137 (assuming e x i stence o f Second Ame n d m ent rig hts where record was insufficient to show d ome s t i c violence misdemeanants were historically

ex c luded from the scope of the Second A mendment); United States v. Chester
, 628 F .3d 6 73, 681–82 (4th Ci r

. 2 0 1 0 ) (assuming that Second Amendment r ig hts were intact, where the evidence was inconclusive o n that q uestion); cf. Mahoney

v. Sessions
, 871 F .3d 873, 8 79 (9th Cir. 2017) (“[ B ] e cause o fU N I T E D S T A T E S V

. T O R R E S 16

the lack of historical evidence in th e re cord before us, we assume, without deciding
, that the UF Policy burdens conduct falling within the scope of the Second Amendmen t r i g ht.” (citations omitted)).

B. Does § 922(g)(5) im pose a perm issible restriction on the Second Am endm ent right of an unlaw f

ul alien?

B e for e we can conclude whether § 922(g )(5) imposes a permissible restriction on th e S econd Amendment rig hts o f aliens unlawfully p r esent in the United States, w e m u s t first determine the appropriate level of scrutiny to apply

.

1. Level of scrutiny

Althoug h Torres a

rg u es that we should appl y strict scrutiny , he acknowledg e s that the relevant case law has not made clear what standard is appropriate. 5 W e have previously

c o n c luded that laws burdening Second Amendment rig hts
must withstand more searching scrutiny t han rational basis

5 Cases f

ro m o th er circu its co n sid e r i n g § 9 22 (g )(5 ) do n o t

co n clu siv ely sh o w th e ap p ro p riate lev el o f scru tiny

. S ee Meza -Ro drig u ez , 7 9 8 F.3 d at 67 2

– 7 3 (ap p ly in g rev iew ak in to in term ed iate scru tiny ); Ca rp i o -Leo n , 7 0 1 F.3 d at 9 8 2 –8 3 (n o t reach in g th e issu e of th e ap p ro p riate s cru tiny un d er th e Seco n d A m en d m en t b u t ap p ly in g ratio n al b asis rev iew to Fif

th A m en d m en t ch allen g e, reaso n in g th at un law f u l alien s d o n o t h av e a f

un d am en tal rig h t t o b ear arm s); Hu itro n -Gu iza r , 6 7 8 F.3 d
at 1 1 6 9 (assum in g in term ed iate scru tiny ap p lies to Seco n d Am e n d m en t claim
, b ased o n co m

p ariso n to c h a llen g e m ad e un d er § 9 2 2 (g )(8 )’ s p ro h ib itio n f

o r o n e w h o is su b j ect t o a d o m estic v io len ce p ro tectio n o rd er; b u t ap p l y in g ratio n al b asis rev iew to eq u al pro tectio n claim
, b ecau se th at is th e ap p ro p riate stan d ard un d er w h ich to scru tin ize “ [f

]ed eral statutes th at classif

y b ased o n alien ag e”); see g en era lly Flo res , 6 6 3 F.3 d 1 0 2 2 (n o t reach in g t h e q u estio n o f th e ap pro p riate l ev el o f s c r u t in y ); Po rtillo -Mu n o z , 6 4 3 F.3 d 4 3 7 (sam e).U N I T E D S T A T E S V

. T O R R E S 17

r e v iew. Chovan
, 735 F .3d at 1137. The level of scrutiny w e apply “depend[ s] on (1) ‘how close the law comes to the core of the Second Amendment rig ht,’ and (2) ‘the severity of the law’s burden on the rig ht.’” Id. at 1 138 (quoting Ezell v

. City of Chicago
, 651 F .3d 684, 703 (7th Cir. 2011)). “A law that implicates the core of the Second Amendment r ig ht a nd severely burdens that rig ht warrants strict scrutiny .” S ilvester
, 843 F .3d at 821. H owev e r, intermediate scrutiny is appropriate “if a challeng ed law d oes not implicate a core Second Amendment rig h t, o r does not place a substant i al burden on the Second Amendment rig ht.” Jackson
, 746 F .3d
at 961. Althoug h not d ispositive of the question, we note that there has been “near unanimity in the post- He l l e r case law that, when considering regul a t i o ns that fall within the scope of the Second Amendment, intermedi at e scrutiny is appropriate.” Silvester , 843 F .3d at 823.

I n considering the first question to determine the appropriate level of scrutiny —the p rox imity of the cha l l e n g ed law to “the core of the Second Amendment r ig ht” —“ Heller tells us that the core of the Second Amendment is ‘ the rig ht of law-abiding
, responsible citiz e n s to use arms in defense o f hearth a nd home.’” Chovan
, 735 F .3d a t 1 138 (emphasis added) (quoting Heller
, 5 54 U

. S

. at 635). Under a different subdivision o f § 922(g )
, w h i ch p rohibits firearm possession for domestic violence m i sdemeanants, we held in Chovan that “Section 922(g )(9) d oes not implicate this core S e co nd Amendment r ig ht because it regulates firearm possession for individuals w ith criminal convictions.” Id. The defendant’s asserted rig ht to possess a firearm for self-defense w a s n o t within the core of the Second Amendment (as identi f ied in Heller), because he was not a “ law-abiding
, responsi ble citiz en.” Id. ( quoting Chester
, 628 F .3d at 682–83). L ikewise, § 922(g )(5) d oes not burden this core rig h t, because theU N I T E D S T A T E S V

. T O R R E S 18

prohibition applies only to those who are p r esent in the United States “ illegally or u nla w fully .” 18 U .S.C. § 922(g )(5)(A) (emphasis added).

Und e r the second question f or determining the level o f scrutiny to apply

—“the severity of the law’s burden o n t h e righ t” at issue—we f

ound in Chovan a “quite substantial” burden on Second Amendment rig hts from a statute imposing

a lifelong “‘ t o t al prohibition’ on firearm p ossession for a class of individuals.” Chovan
, 735 F .3d at 1138 ( a n a ly zing § 922(g )(9)). W e found this burden tempered, however, b y

ex e mptions from the lifetime ban for persons whose conviction “ h a s b een ex pung ed or set aside” or w ho have “been pardoned or

. . . had [ their] c ivil rig hts restored.” Id. at 1130, 1138; 1 8 U.S.C. § 921(a)(33)(B )(ii). Thus, “we a pplied ‘intermediate’ r a t her than ‘strict’ judicial scrutiny in part because section 922(g )(9)’s ‘burden’ on Second A mendment rig hts was ‘lig htened’ by those mechanis m s.” Fisher v

. Kealoha
, 855 F .3d 1067, 1071 n.2 (9th C i r. 2 0 17) (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 posses s i o n ex tends bey ond the time that an alien’s presence in the Uni t e d S tates is unlawful. The factual condition trig g ering the p rohibition in § 9 2 2 (g )(9)—that a p erson “ has been convicted” of a domestic violence mis d e m e a n o r

— is phrased in the past tense, indicating that (once that event occurs) the ban continues for li f e, unless one of the enumerated ex ceptions a pplies. Conversely
, the factual condition trig g ering the prohibition in § 922(g )(5)—that a person “ is illeg ally or unlawfully in the United States”—is phrased i n t h e present tense, indicating that the person affected by that p rovision may remove himself from the prohibition b y acquiring lawful immig ration status. The burden imposed by

§ 922(g )(5) is, therefore, tempered.U N I T E D S T A T E S V

. T O R R E S 19

B e cause § 922(g )(5) d oes not i m p licate the core Second Amendment r i gh t, and b ecause its burden is tempered, we proceed to apply intermediate scrutiny

. S ee F y o ck v

. Sunnyvale
, 7 7 9 F .3d 991, 998–99 (9th Cir. 2 015) (“Intermediate scrutiny is appropriate if the regulation at issue d oes not implicate the core Second Amendment r ig ht or does not place a substantial burden on that rig h t.”); Chovan
, 735 F .3d at 1138.

2. Application of intermediate scrutiny

F or a challeng e d statute to survive intermediate scrutiny
, i t m u s t have (1) a “sig nificant, substantial, or important”
go v ernment objective; and (2) a reasonable fit between th at objective and the conduct r e gu l a t ed. Chovan
, 735 F .3d at 1139. A statute need n ot utiliz e “the least restrictive means o f achieving its interest” in order to withs t a n d intermediate scrutiny

. F

yock
, 779 F .3d at 1000. I nstead, the statute simply needs to “promote[ ] a ‘substantial g overnm ent interest that would be a chieved less effectively absent the r eg ulation.’” Id. (quoting Colacurcio v

. City o f Kent
, 1 6 3 F. 3d 545, 553 (9th Cir. 1998)).

The g overnment argues that it has important “interests in crime control and p ublic safety .” W e ag re e

. “ T he [ g overnment ] h a s the important g overnment interest o f ensuring the safety of both the public and its police o fficers.” Mahoney
, 871 F .3d at 882 (citi n g U n ited States v. S

alerno
, 481 U.S. 739, 748 ( 1987); J ackson
, 746 F .3d at 965); see also Binderup
, 836 F .3d at 3 90 (“ T h e stated purpose o f the 1968 revision was to curb crime by keeping firearms out o f the hands of those not leg ally entitled to possess them because o f
ag e, criminal backg round, or incompetency .” (F uentes , J
., concurring in part and dissenting in part) (internal c i tationsU N I T E D S T A T E S V

. T O R R E S 20

omitted ) ) ; Meza-Rodriguez
, 798 F .3d a t 673 ( “Cong ress’s

o b jective in passing § 922(g ) was ‘to k eep g uns out of t h e hands of presumpt i vely risky people’ and to ‘ suppress[ ] armed violence.’” (alteration in orig inal) (quoting United States v. Y

ancey , 621 F

. 3 d 681, 6 83–84 (7th Cir. 2010))). These g overnment interest s a r e particularly applicable to those subject to removal. “[ T] hose who show a willing ness to defy our law are

. . . a g roup that oug ht not be a rmed when authorities seek them.” Huitron-Guizar
, 678 F .3d at 1170. I f armed, unlawful aliens could p ose a threat to immig r ation officers or other law enforcement who attempt to apprehend and remove them.

F urther,“[ unlawful aliens] often live ‘larg e l y outside the formal sy stem of reg istration, employ m e n t , a n d i d e n t i f i cation, [ and] a re 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). Th e r e fore, “the ban on the possession of f

irearms by [ unlawf

u l a l iens] is substantially related to the statute’s g eneral objectives because such persons are able purposefully to evade detection by law enforcement.” Id.

F inally
, “ the g overnment h as a[ ] stro n g interest in preventing people w h o already h ave d isrespected the law (including
, i n addition to aliens unlawfully in the country , felons, § 922(g )(1), fug itives, § 922(g )(2), and those convicted o f misdemeanor crimes of domestic violence, § 922(g ) (9)) from possessing g uns.” I d. Section 922(g )(5) a

nd other concurrent additions to § 922(g ) “ reflect[ ] Co n gr ess’s judg ment that persons within these categ ories ‘ may n ot be trusted to possess a firearm without becoming a thr e a t to

s o c iety .’” Binderup
, 836 F .3d at 390 & n.98 (F uentes , J

. , concurring in p a

rt a n d dissenting in part) (quotingU N I T E D S T A T E S V

. T O R R E S 21

Scarborough v. United States
, 431 U.S. 563, 572 (1977)). “[ T] hese r es t r i c t i ons

. . . disarm g roups whose members Cong r ess believes a

re unable or unwilling to conduct themselves in conformity w i t h the responsibilities o f citiz enship.” Id. at 390–91.

I n sum, the g overnment’s interests in controlling crime and ensuring public safety are promoted by keeping f irearms
out of the hands of unlawful al i e n s—who are subject to removal, are difficult to monitor due to an inherent incentive
to falsify information and evade law e nforcemen t , a n d have already shown they

are unable or unwilling to conform their

c o n d uct to the laws o f this c ountry

. These import a n t g overnment interests “would be ac h i e ved less effectively ”

were it not for § 922(g )(5)

. Fy o ck
, 779 F .3d at 1000. 6 According ly
, § 922(g )(5) survives intermediate scrutiny

.

IV. CONCLUSION

The present state of the law leaves us unable to conclude with c ertainty whether a liens unlawfully present in the United States are p art of “the p eople” to whom Second A mendment protect i o n s ex tend. Nonetheless, assuming that unlawful aliens do hold some deg ree o f Second Amendment rig hts,

6 A l th ou g h a p ro h i b itio n ap p ly in g to all un law f u l alien s m ay be o v erin clu siv e, a statute n eed n o t u tilize “ th e l east re s t r i c t i v e m ean s of ach iev i n g its in terest” in o rd er to w ith stan d in t erm ed iate scru tin y

. Fyo ck
, 7 7 9 F.3 d at 10 0 0 ; see a lso Hu itro n -Gu i za r , 6 7 8 F.3 d at 1 1 7 0 (reco g n izin g th at § 9 2 2 (g )(1 )’ s p ro h ib itio n o n f irearm p o ssessio n b y all th ose co n v i cted

o f f elo n ies is a v alid restrictio n , desp ite th e r e a l i t y th at “ [t]h e class of

co n v icted f

elo n s, to o, in clu d es n o n

- v io len t o f f en d ers”).U N I T E D S T A T E S V

. T O R R E S 22

those rig hts are not unlimite d
, and the restriction in § 922(g )(5) is a valid ex ercise of Congress’s authority

. 7

AF F IRMED

.

7 T h is co n clu sio n also n ecessarily d isp oses o f T o rres’ s deriv ativ e eq u al p ro tectio n an d d u e p ro cess claim s

. Teixeira v. Cty. o f Ala med a , 8 2 2 F.3 d 1 0 4 7
, 10 5 2 (9 th Cir.), reh ’g en b a n c g r a n ted
, 8 5 4 F.3 d 1 0 4 6 (9 th Cir. 2 0 1 6 ); see a lso Po rtillo

- M un o z , 6 4 3 F.3 d at 4 4 2 n .4 (ex p lain in g t h at, b ecau s e t h e s t a t u te at issu e (§ 9 2 2(g )(5 )) w as a f ed eral law to w

h ich th e B ill of Rig h ts d irect l y a p p lied (w ith o u t in co rp o ratio n ), th e alien co u ld
p ursu e th e rig h t o n ly un d er th e S eco n d A m en d m en t an d co u ldn ot “ l o ok
to th e d u e p ro cess clau se as an ad d itio n al so urce o f p ro tectio n f o r a rig h t to k eep an d b ear arm s” (citin g Gra h a m v. Co n n o r , 4 9 0 U .S. 3 8 6
, 3 9 4

– 9 5 (1 9 8 9))).