When can the government take guns away from undocumented people, and when does the Second Amendment stop it? A new Sixth Circuit decision in United States v. Escobar‑Temal puts that question front and center.
Nashville Arrest to Constitutional Test
Milder Escobar‑Temal is a citizen of Guatemala who entered the United States unlawfully over a decade ago. He lived in Nashville, Tennessee, working steadily as a flooring contractor. His only prior criminal justice contact before this case was a 2016 charge for driving without a license, which was dismissed in the same year.
On October 12, 2022, Nashville police arrested him at his residence (after a 911 call about domestic abuse). In a search incident to that arrest, the police found three firearms — one on a couch and two in the bedroom he shared with his wife.
Not long after, the federal government charged Escobar‑Temal with unlawful possession of a firearm while illegally present in the United States, in violation of federal law (18 U.S.C. § 922(g)(5)(A)). He was later sentenced to twelve months and one day of imprisonment followed by three years of supervised release.
All the while, Escobar‑Temal had been challenging § 922(g)(5)(A) as unconstitutional under the Second Amendment, both on its face and as applied to him. The district court had denied his motion to dismiss the case against him on these grounds, so he appealed directly to the Sixth Circuit Court of Appeals.
Can Congress Disarm All Undocumented People?
The defendant had two main arguments about why the federal gun law should not apply.
First, he claimed Congress is not allowed to completely ban all undocumented people from having guns in any situation because, in his view, that goes against the Second Amendment as the Supreme Court has recently interpreted it. He pointed out that recent Supreme Court cases (like Heller and Bruen) have established that, in order to be compliant with the Second Amendment, any law that takes guns away from a whole group of people must be closely tied to how firearms were actually regulated around the time the Constitution was written.
Section 922(g)(5)(A) makes it a crime for anyone who is “illegally or unlawfully in the United States” to possess a gun. Escobar‑Temal said § 922(g)(5)(A) goes too far because it makes it a crime for every person who is in the United States unlawfully to possess a gun, without asking whether any particular individual is dangerous or misusing a firearm, even when their conduct is simply having a gun at home. In his view, that kind of blanket, status‑based ban “disarms a broad class of people” whose conduct falls within the heart of the Second Amendment, and the government cannot point to any founding‑era pattern of laws that similarly disarmed people just because of their immigration status or a comparable civil status, rather than because of demonstrated disloyalty, violent behavior, or refusal to take an oath of allegiance.
The Sixth Circuit agreed with the premise that Escobar‑Temal’s conduct (keeping guns in the home) falls within the Second Amendment’s protection, and it further held that someone in his position (an unlawfully present noncitizen with long‑term residence and ties) is part of “the people” for Second Amendment purposes. But the court split from him at the next step.
Using the history‑and‑tradition test from Bruen, the court said Congress can still disarm people like Escobar‑Temal. It pointed to a long pattern of governments taking guns away from people whose legal or political status made them hard to control or showed weak loyalty, even if any given individual in that group was not shown to be violent. The judges relied on examples from English law, the colonies, and early American statutes, where lawmakers disarmed entire categories of people (like loyalists, people who refused loyalty oaths, and some noncitizens) because of their status and their relationship to the government. The court said undocumented immigrants today are similar in an important way: without lawful status, they sit outside the formal systems that modern gun laws use, like lawful presence records, ID systems, and background checks. Because of that, Congress can treat them as a group that may be disarmed without violating the Second Amendment.
On that basis, the Sixth Circuit rejected Escobar‑Temal’s facial challenge to § 922(g)(5)(A). The court concluded that the government had, in fact, identified a sufficiently close founding‑era analogue for this kind of status‑based disarmament, so the statute is not invalid in all (or nearly all) of its applications.
What If You’re a Law-Abiding Non-Citizen?
Escobar‑Temal’s second argument was that even if the law might be valid in some cases, it should not be applied to him personally. He pointed to the length of time he has been living in Nashville, his steady work, and his lack of a serious criminal record. He argued that this was evidence that he was a responsible, settled member of the community, and that there was no good historical reason to treat him like a dangerous person who must be disarmed.
The Sixth Circuit acknowledged that Escobar‑Temal does indeed look like an ordinary, settled member of the community in many ways. Yet the court held that these facts do not change the key point for Second Amendment purposes: as long as he remains unlawfully present, he lacks the kind of formal, regulable relationship with the federal government that historically mattered for deciding who could be trusted with arms.
Again, the judges pointed to historical examples: just as a “peaceable Quaker” who declined to swear allegiance could still be disarmed, a nonviolent undocumented person can be disarmed today because of that legal status, not because of a proven personal propensity for violence. For that reason, the panel held that § 922(g)(5)(A) is constitutional as applied to Escobar‑Temal and affirmed his conviction.
Big Stakes Ahead?
We’ll note that the majority’s opinion deepens an emerging split over how far the Second Amendment extends to noncitizens. This is especially true because one of the judges in the panel, Judge Thapar, wrote separately to state that he would have held that undocumented immigrants are not part of “the people” at all — a position that could attract further review.
Escobar‑Temal could seek rehearing by the full Sixth Circuit or to ask the U.S. Supreme Court to take up the case in a future term. But for now, the upshot is that the gun law remains fully intact (at least in the Sixth Circuit) and gives Congress broad leeway to bar undocumented people from possessing firearms based on their legal status alone.
Related Resources
- SCOTUS To Decide Whether to End Birthright Citizenship (FindLaw's Federal Courts)
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- SCOTUS Upholds Ability for ICE to Stop People Based on Race, Language, and Job (FindLaw's Federal Courts)
