An undocumented immigrant in Maine was charged with a federal gun crime. His case now sits at the center of a fight over whether the Second Amendment protects people like him — and to what extent courts can stretch history to uphold or prohibit gun regulations.
Building a Life, Facing a Felony
In early 2012, sixteen-year-old Alberto Rebollar Osorio reported that he received an ultimatum from a cartel in Zacazonapan, Mexico: join or be killed. His parents, who had already sent his brothers north, sent him to the United States as his only real chance at survival. Over the next decade, he built a life here, working and developing skills and certifications. He became deeply rooted in Texas communities and later in Maine. By 2019, he had met Madison, a U.S. citizen, and they were soon planning a wedding and consulting an immigration attorney about adjusting his status.
But in 2024, a sheriff’s deputy pulled him over for speeding on Route 16 in Adamstown Township, Maine. During the stop, the deputy learned that Rebollar Osorio had entered the United States near McAllen, Texas, about eleven years earlier. The deputy also learned he was not here legally, though he had no prior criminal record. After being told the vehicle would be towed and asked whether there was anything inside officers should worry about, including weapons or drugs, he disclosed that a handgun was in his backpack. He directed officers to it, leading to the recovery of a Kel-Tec .380 pistol and ammunition. Those facts led a federal grand jury to indict him under 18 U.S.C. § 922(g)(5), which makes it a crime for an alien “illegally or unlawfully” in the United States to possess a firearm, and § 924(a)(8), which supplies the penalty.
Does the Second Amendment Cover Undocumented Immigrants?
The case quickly became a vehicle for testing how far Second Amendment protections extend.
In 2022, the Supreme Court’s decision in New York State Rifle & Pistol Association v. Bruen held that when an individual’s conduct falls within the Second Amendment’s text, the government can defend a gun restriction only by showing it is consistent with the Nation’s historical tradition of firearm regulation. Relying on Bruen, Rebollar Osorio’s public defender moved to dismiss, arguing that § 922(g)(5) was unconstitutional as applied to him because, given his years in the country and close ties to U.S. citizens, he fell within “the people” the Amendment protects and the government could not justify disarming him.
Prosecutors countered that undocumented immigrants fall outside that protected category altogether or, alternatively, that § 922(g)(5) fits within a longstanding tradition of status-based restrictions on who may be armed. But District Judge Nancy Torresen didn’t buy this argument. Reading the Court’s precedents together, the judge held that unlawfully present noncitizens with substantial ties (like Rebollar Osorio) fall within that term. As a result, their right to possess firearms is protected by the Second Amendment, and the government must justify any restriction.
Judge Torresen then applied Bruen’s history‑and‑tradition test. She focused on the breadth of § 922(g)(5), which categorically prohibits firearm possession by all undocumented immigrants, regardless of individual dangerousness. Surveying founding‑era sources, she found no tradition of disarming noncitizens as a class and concluded that early laws aimed at “dangerous” persons did not turn on immigration status. Because the government had not produced a distinctly similar or sufficiently analogous historical practice, she held that § 922(g)(5) violated the Second Amendment as applied to him and dismissed the indictment.
First Circuit Takes a Different Approach
On appeal, the First Circuit reversed but did so without deciding whether undocumented immigrants like Rebollar Osorio are within “the people.” Instead, the panel assumed for argument’s sake that he could claim Second Amendment coverage and skipped directly to Bruen’s historical inquiry. That move sidestepped the broader question of noncitizens’ constitutional status and put all the weight on whether § 922(g)(5) can be reconciled with historical firearms regulation.
In addressing that historical inquiry, the First Circuit framed the question more broadly than the district court had. It did not look for founding-era statutes that specifically targeted undocumented immigrants, a category that did not exist in the same way. Instead, it asked whether there is a tradition of restricting arms to those firmly within the political community and disarming those deemed outside or insufficiently loyal. Drawing on English and early American case law and statutes, the panel emphasized laws that limited arms for groups such as non‑Protestants, persons who refused loyalty oaths, and others treated as outside the core polity. In the court’s view, those measures reflected a longstanding use of status-based rules to control who could be armed.
From there, the First Circuit treated § 922(g)(5) as a modern extension of that tradition. It stressed that Bruen does not require “dead ringers” from the 18th or 19th century; functional analogs can suffice. For the panel, a statute that disarms people who remain in the country without authorization serves a similar purpose to earlier laws that disarmed those perceived as unreliable. On that reasoning, the court concluded that § 922(g)(5) is consistent with the Nation’s historical tradition of firearm regulation, at least as applied in this case. It therefore reversed the dismissal and remanded to the district court.
Lingering Questions
The panel left unresolved whether “the people” ultimately includes all undocumented immigrants with substantial connections. That question now arises against the backdrop of a growing split among the courts of appeals over whether, and to what extent, undocumented immigrants are part of “the people” the Second Amendment protects from disarmament. As those disagreements deepen, cases like Rebollar Osorio’s may eventually force the Supreme Court to say more about who can claim the right to keep and bear arms in the first place.
Related Resources
- Sixth Circuit Fires Back on Machine Guns (FindLaw’s Federal Courts)
- Ninth Circuit Addresses Where the Government Can Prohibit Guns (FindLaw’s Federal Courts)
- Supreme Court Denies Challenge to Law Prohibiting Guns for People Under Restraining Orders (FindLaw's Federal Courts)
