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Federal Gun Ban for Undocumented Immigrants Upheld

By George Khoury, Esq. on January 09, 2019 3:40 PM

A three-judge panel at the Ninth Circuit has upheld the federal ban on undocumented immigrants possessing firearms.

The case, U.S. v. Torres, involved an undocumented immigrant who was arrested for possession of a firearm, a homemade silencer, bolt cutters, and a stolen bicycle.

Second Amendment Limitations

Notably, Torres married a U.S. citizen in 2012, but never applied for citizenship and remained undocumented. He moved to dismiss the charges at the district court on the grounds that the federal ban violated his Second Amendment rights, but was unsuccessful, then lost at trial. He was sentenced to 27 months and 3 years of court-ordered supervision, and now also potentially faces deportation.

Unfortunately for Torres, despite the Second Amendment having been ruled to apply to individuals, the appellate court agreed that limiting its application when it comes to undocumented immigrants cuts the constitutional muster. It explained that like other groups, such as felons, fugitives, those subject to restraining orders, and the mentally ill, some restrictions on gun ownership are reasonable.

Torres argued that the federal ban violated his constitutional right to bear arms, but after applying intermediate scrutiny, the appellate court ruled that the ban was within Congress's power to implement. The court stopped short of deciding whether or not the Second Amendment applied to undocumented immigrants as it found that the ban would be upheld even if it did.

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