First Circuit OKs gun possession prosecution of immigrant

(CN) — A Mexican immigrant living in the United States without authorization may be prosecuted by the federal government for illegally possessing a firearm, a First Circuit panel ruled Tuesday.

The three-judge panel found the federal gun control statute fits within the history and tradition of this nation’s regulation of firearms rooted in English law and because it was enacted in the context of modern societal concerns about security risks posed immigrants living in this country without permission.

Tuesday’s ruling involves the prosecution of Alberto Rebollar Osorio, a Mexican citizen who had been living in the U.S. for 11 years when he was taken into custody during a Maine traffic stop. Because he had a gun in his car, Rebollar Osorio was indicted on a charge of possessing a firearm as an “alien illegally or unlawfully in the United States,” a law enacted in 1968 during a wave of assassinations and riots.

U.S. District Judge Nancy Torresen of the District of Maine dismissed the indictment, finding the law violated the Second Amendment because migrants are among “the people” referred to in the Second Amendment and thus inconsistent with the country’s historical tradition of firearms regulation. The U.S. Justice Department appealed, putting the Trump administration in the unusual position of advocating for limits on gun rights.

The First Circuit panel reversed Torresen’s ruling in a decision written by U.S. Circuit Chief Judge David Barron joined by U.S. Circuit Judge William Kayatta, both Barack Obama appointees, and by U.S. Circuit Judge Jeffrey Howard, a George W. Bush appointee.

The panel found Rebollar Osorio’s challenge fails under the U.S. Supreme Court’s Second Amendment decisions. Barron in his opinion frequently referred to the First Circuit’s decision in U.S. v. Vizcaíno-Peguero in concluding the federal firearms statute under which Rebollar Osorio was charged “fits comfortably” within this nation’s tradition of regulating firearms, including colonial measures to disarm Native Americans and Catholics and founding-era laws that conditioned gun possession with allegiance to the nation.

The panel rejected Rebollar Osorio’s argument that the Second Amendment secures a broader right to firearms than the English Bill of Rights and thus “repudiated” the English practice of “categorically disarming” political opponents. “We therefore are not persuaded by Rebollar Osorio’s attempt to dismiss as irrelevant the English history that the government invokes and that we relied on in Vizcaíno-Peguero,” Barron wrote.

Citing the First Circuit opinion also issued Tuesday, Barron said: “As we explained in Vizcaíno-Peguero, however, the relevant history reveals a longstanding concern about sovereign control over individuals who, although owing a temporary and local allegiance to this country, which subjects them to laws like [the one Rebollar Osorio was indicted under], belong to groups presumed allegiant to a foreign power and have not formally recognized the government’s authority.”

The firearms statute challenged in this case “implicates a novel societal concern, as it was enacted against the backdrop of our modern immigration framework which did not exist until the late 19th century,” Barron wrote.

Finally, the panel found the statute similar enough to the colonial- and founding-era measures disarming Catholics and British Loyalists in how it burdens the right to bear arms.

“After all, it too allows individuals subject to the restriction the opportunity to restore their right to possess firearms by signaling allegiance and entering the requisite relationship to the relevant government authority in the manner prescribed by that authority," Barron wrote for the panel.

Neither the Justice Department nor Rebollar Osorio’s attorney responded to a request for comment Tuesday.

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