Vazquez-Ramirez: The Ninth Circuit Rejected a Second Amendment Challenge to the Unlawful-Presence Firearm Ban

The Ninth Circuit rejected a Second Amendment challenge to the federal firearm prohibition for unlawfully present noncitizens, while leaving a significant textual question unresolved. In United States v. Vazquez-Ramirez, No. 24-3544 (9th Cir. Jan. 2, 2026), the panel assumed that the defendant could be among the Second Amendment’s protected people and decided the case on historical-tradition grounds. Judge Bumatay agreed with the judgment but proposed a different first-step rationale.

Facts and the Preserved Constitutional Challenge

Oscar Vazquez-Ramirez was born in Mexico and entered the United States unlawfully at age seven. The opinion states that he had no legal immigration status. In December 2021, officers stopped him in Othello, Washington, for failing to yield at a crosswalk and found a firearm in his waistband. He was arrested for driving under the influence and unlawful firearm possession. Vazquez-Ramirez, slip op. at 4.

A July 2022 federal indictment charged a single violation of 18 U.S.C. § 922(g)(5)(A). Vazquez-Ramirez moved to dismiss on Second Amendment grounds. After the district court denied the motion, he entered a conditional guilty plea preserving that constitutional issue for appeal and received five years’ probation. The Ninth Circuit reviewed the constitutional challenge de novo. Id. at 5.

Vazquez-Ramirez did not dispute that he fell within the statute’s illegally-or-unlawfully-present category. His argument was that his long residence entitled him to Second Amendment protection despite that classification. The case therefore did not require a contested determination of his immigration status or a decision about a state-issued permit. Id.

Why the Earlier Intermediate-Scrutiny Test Could Not Control

The panel explained that the circuit’s earlier Torres ruling had subjected Second Amendment challenges to this prohibition to intermediate scrutiny. That approach was clearly irreconcilable with Bruen, which requires textual and historical analysis rather than the earlier means-end balancing. The panel overruled the intermediate-scrutiny ruling to that extent. This was a change to the governing constitutional method, not a conclusion that every separate proposition in Torres had been erased. Id. at 5–6.

The framework described in the opinion asks first whether the Second Amendment’s text covers the proposed conduct. If it does, the government must justify the restriction by showing consistency with the nation’s historical tradition of firearm regulation. The analogy considers both the burden imposed and its justification; the court need not find an identical historical statute. Id. at 5–6.

The Panel Assumed Textual Coverage Rather Than Deciding It

The panel expressly declined to decide whether unlawfully present noncitizens fall within the Second Amendment’s protected people. It assumed coverage and moved to the government’s historical justification. That procedural choice matters: The judgment cannot be cited as a majority holding categorically excluding those individuals from the constitutional text. Id. at 6.

The Historical Analogues and Their Limits

The opinion considered English common law, pre-ratification colonial laws, and post-ratification practice. Its common-law discussion connected the narrower rights of aliens to temporary allegiance, landownership restrictions, and firearm restrictions. It also described laws directed at Catholics perceived as owing allegiance to a foreign sovereign. The panel acknowledged that such historical laws would encounter problems under other constitutional provisions; it used them as evidence of a historical regulatory principle, rather than approving their present reenactment. Id. at 7–9.

The colonial discussion included restrictions on providing arms to Native Americans and post-Revolution laws disarming persons who refused loyalty oaths. The opinion then described post-ratification references to citizens’ firearm rights and state restrictions based on alienage or allegiance. The panel viewed these sources together as evidence of a tradition of disarming people outside the relevant allegiance relationship. That is the court’s historical characterization, rather than an assertion that the modern law reproduces each discriminatory historical rule. Id. at 9–10.

At the final comparison, the panel found similar mechanisms and justifications: The modern law disarms unlawfully present noncitizens, and the historical rules disarmed groups the sovereign associated with an absence of allegiance. On that reasoning, it held that the government satisfied the historical-tradition inquiry and rejected this defendant’s as-applied challenge. Id. at 10–11.

Judge Bumatay’s Concurrence Offered a Different Constitutional Route

Judge Bumatay concurred in the judgment only. His separate opinion would resolve the first step: He read the protected people as members of the national political community and would exclude unlawfully present noncitizens on that basis. His reasoning addressed constitutional text, structure, political philosophy, and historical understandings of membership. Id. at 12–34 (Bumatay, J., concurring in the judgment).

The disagreement is therefore methodological and consequential. The panel held that the prohibition survives even assuming textual coverage; the concurrence would avoid the second-step historical analogy because the text would not cover the defendant. Both routes support this judgment, but only the panel’s rationale establishes the court’s disposition of the unresolved textual issue.

The panel described its result as joining the sister circuits identified in the opinion. That statement reflects the authorities identified by the panel in its January 2, 2026 opinion. Id. at 4.

Disposition and the Questions Left Open

The Ninth Circuit affirmed the denial of the motion to dismiss and left the conviction intact. The opinion is a published criminal appellate decision. It is not an immigration-court ruling, a determination of discretionary relief, or a decision about all categories of noncitizens. It does not resolve a different defendant’s disputed status or every element of a firearms prosecution. Id. at 4–6, 11.

The companion immigration-status and state-permit guide separates those practical document questions from the constitutional holding. See our immigration services for help identifying the records relevant to an immigration analysis.