Appeal from the United States District Court For the Middle District of Pennsylvania (D.C. No. 1:21-cr-323) District Judge: Jennifer P. Wilson

Argued June 30, 2026

Before: SHWARTZ, PHIPPS, and McKEE, Circuit Judges. (Filed: September 1, 2026)

John A. Abom Craig E. Kauzlarich [ARGUED]Page 2 Abom & Kutulakis 2 W High Street Carlisle, PA 17013

Counsel for Appellant

Patrick J. Bannon [ARGUED] Office of United States Attorney 235 N Washington Avenue P.O. Box 309, Suite 311 Scranton, PA 18503

Carlo D. Marchioli Office of United States Attorney Middle District of Pennsylvania Sylvia H. Rambo United States Courthouse 1501 N 6th Street, 2nd Floor P.O. Box 202 Harrisburg, PA 17102

Counsel for Appellee

______________

SHWARTZ, Circuit Judge.

Diego Edgardo Aleman-Lozano appeals his conviction under 18 U.S.C. § 922(g)(5)(B), which makes it a crime for nonimmigrant visa holders, with certain nonapplicable Page 3exceptions, to possess a firearm. He argues that the statute violates the Second Amendment. We disagree and will affirm.

Aleman-Lozano is a native and citizen of El Salvador. He entered the United States unlawfully but, in 2017, was granted a nonimmigrant temporary visa with work authorization. Since entering the United States, he has resided with his family, attended school, and worked in Washington, D.C.

In September 2021, a Pennsylvania state trooper pulled Aleman-Lozano over for a traffic violation, and AlemanLozano provided the trooper with a valid Washington, D.C. driver’s permit and a United States employment authorization card. During the stop, the trooper saw a rifle cartridge on the passenger seat. As a result, the trooper obtained a search warrant and found a pistol containing a loaded sixteen-round magazine, which Aleman-Lozano told police he had purchased from an unidentified individual in Maryland. The pistol did not have a serial number.

A grand jury charged Aleman-Lozano with violating 18 U.S.C. § 922(g)(5)(B). Aleman-Lozano moved to dismiss the indictment, arguing that § 922(g)(5)(B) violates the Second Amendment. The District Court disagreed and denied the motion. United States v. Aleman-Lozano, No. 1:21-CR00323, 2024 WL 1661111, at *1 (M.D. Pa. Apr. 17, 2024). Aleman-Lozano thereafter entered a conditional guilty plea pursuant to which he reserved his right to appeal the Second Amendment ruling. He was sentenced to twenty-four mon ths’ imprisonment and one year 's supervised release.

Page 4A

Aleman-Lozano asserts that 18 U.S.C. § 922(g)(5)(B) is facially unconstitutional under the Second Amendment. Section 922(g)(5)(B) makes it unlawful for:

any person . . . who, being an alien . . . except as provided in subsection (y)(2), [2] has been admitted to the United States under a nonimmigrant visa (as that term is defined in . . . 8 U.S.C. § 1101(a)(26)) [3] . . . to . . . possess in or affecting commerce, any firearm or ammunition.

Page 518 U.S.C. § 922(g)(5)(B).⁴ Because Aleman-Lozano brings a facial challenge, we must determine whether this statute “is unconstitutional in all of its applications' under the Second Amendment. United States v. Cuevas-Almonte, 156 F.4th 319, 328 (3d Cir. 2025) (citation omitted).

The Second Amendment provides “[a] well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” U.S. Const. amend. II. New York State Rifle & Pistol Ass ’ n v. Bruen, 597 U.S.¹ (2022), established a two-part test to determine whether a law is consistent with the Second Amendment. At Bruen Step One, we determine whether “the Second Amendment’s plain text covers an individual’s conduct.' Id. at 24. Here, this requires us to determine whether the type of person subject to the regulation is among “the people” under the text of the Amendment. Wolford v. Lopez, 146 S. Ct. 2032, 2043 (2026). If a law regulates relevant conduct by persons covered by the Amendment, then “the Constitution presumptively protects that conduct, ” Bruen, 597 U.S. at 24, and we then move to Bruen Step Two. There, we ask whether the Government can 'justify its' restriction on firearm possession by showing it “ is consistent with the Nation’s historical tradition of firearm regulation . ' Id. At this step, a court may consider various sources, including scholarship and “old legal rules,” to determine if there is an Page 6analogue to the challenged law. Wolford, 146 S. Ct. at 2044.⁵ A court must determine if a proposed analogue is relevantly similar to the challenged law, 6 which involves assessing why those old legal rules were adopted and how they burdened the Second Amendment right to keep and bear arms for selfdefense. See id. If the Government cannot produce historical analogues to justify its regulation, then the regulation is unconstitutional. See id.; Bruen, 597 U.S. at 24.

B

Because the challenged law regulates who may possess a firearm, the Bruen Step One inquiry requires us to determine whether the regulated persons — here, nonimmigrant visa holders — are among 'the people' referenced in the Second Amendment. The Supreme Court has described “the people” in several ways. The Court has used the terms “citizens,” see District of Columbia v. Heller, 554 U.S. 570, 595 (2008); Bruen, 597 U.S. at 29; United States v. Rahimi, 602 U.S. 680, 701-02 (2024) , “law -abiding citizens,” see Heller, 554 U.S. at 625; Bruen , 597 U.S. at 29 (discussing “a law -abiding citizen’s Page 7right to armed self-defense ”), and “all Americans,” see Heller, 554 U.S. at 581; Bruen, 597 U.S. at 70; United States v. Hemani, 146 S. Ct. 1677, 1685 (2026). In Heller and Wolford, the Court used the phrase ' all members of the political community. ” 7 See Heller, 554 U.S. at 580; Wolford, 146 S. Ct. at 2043 (quoting Heller, 554 U.S. at 580). Heller also defined “the people” as those who are “part of [the] national community or who have otherwise developed sufficient connection with this country.” 554 U.S. at 580 (quoting United States v. Verdugo-Urquidez, 494 U.S. 259, 265 (1990) (Fourth Amendment context)). Because precedent has employed both definitions, the Supreme Court has not yet settled whether “the people” refers to members of the “political community” and/or the 'national community. See United States v. DuqueRamirez, 161 F.4th 1237, 1245 n.7 (10th Cir. 2025).

In Second Amendment challenges to the related provision 18 U.S.C. § 922(g)(5)(A), which prohibits aliens who are 'illegally or unlawfully in the United States' from possessing a firearm, some of our sister Courts of Appeals have adopted the “ political community ” perspective and concluded that unlawfully present noncitizens are excluded from 'the people.” See United States v. Medina-Cantu, 113 F.4th 537, 542 (5th Cir. 2024) (per curiam), cert. denied, 145 S. Ct. 1318 (2025); United States v. Murillo-Lopez, 151 F.4th 584, 591-92 (4th Cir. 2025); United States v. Sitladeen, 64 F.4th 978, 98385 (8th Cir. 2023). Others have applie d the “national community” prism and concluded that at least some noncitizens are among 'the people.' See United States v.

Page 8Escobar-Temal, 161 F.4th 969, 977-78 (6th Cir. 2025); United States v. Carbajal-Flores, 143 F.4th 877, 881-82 (7th Cir. 2025), cert. denied, 146 S. Ct. 826 (2025); see also United States v. Jimenez-Shilon, 34 F.4th 1042, 1044-45 (11th Cir. 2022) (pre-Bruen, recognizing that it 'can't rule out the possibility that at least some illegal aliens might . . . have otherwise developed sufficient connection with this country to be considered part of [the national] community” but assuming that 'Jimenez is among 'the people' as a general matter' (citation omitted)). The Court of Appeals for the Second Circuit has relied on both definitions to recognize that some noncitizens may be among “the people” if they can “qualify as being part of the ‘national’ or ‘political’ community” but has assumed that individuals are part of 'the people' to avoid resolving this challenging debate. United States v. Perez, 6 F.4th 448, 452 (2d Cir. 2021) (pre-Bruen).⁸ Still others, recognizing this question 's difficulty and other barriers to successful challenges to § 922(g)(5)(A), assumed without deciding that noncitizens are among “ the people ” and then proceeded to the Bruen Step Two analysis. See United States v. Vizcaino-Peguero, 175 F.4th 34, 40 (1st Cir. 2026); United Page 9States v. Vazquez-Ramirez, 163 F.4th 706, 709 (9th Cir. 2026) (per curiam); Duque-Ramirez, 161 F.4th at 1245.

Any court adopting a definition of 'the people' in a Second Amendment case must be mindful of its impact on other constitutional Amendments containing the same phrase.⁹ See Lara v. Comm’r Pa. State Police, 125 F.4th 428, 437 (3d Cir. 2025) (' Lara II ”) (recognizing that ' Heller cautions against the adoption of an inconsistent reading of ‘the people’ across the Constitution” (citing Heller, 554 U.S. at 580)); see, e.g., U.S. Const. amends. I, IV, and IX (containing “the people”) . 10 Some of these Amendments have been interpreted Page 10to cover noncitizens. See Bridges v. Wixon, 326 U.S. 135, 148 (1945) (noting that the First Amendment “[f]reedom of speech and of press is accorded aliens residing in this country”); see also Verdugo-Urquidez, 494 U.S. at 272 (noting the Supreme Court has assumed without deciding that the Fourth Amendment applies to “illegal aliens in the United States” but stressing that 'the question presented . . . was limited to whether the Fourth Amendment’s exclusionary rule should be extended to civil deportation proceedings' (citing INS v. Lopez-Mendoza, 468 U.S. 1032 (1984)).¹¹

Because (1) adopting a definition of “the people” in this Second Amendment case may impact its meaning in other Page 11contexts, (2) a ruling deciding this point is unnecessary to resolve this case, and (3) although this case involves a facial challenge to the statute, any definition of “the people” we adopt may not capture nuances among nonimmigrant visa holders, the principles of constitutional avoidance and judicial restraint militate against deciding who is among 'the people.' See Vizcaino-Peguero, 175 F.4th at 39-40; accord Kajmowicz v. Whitaker, 42 F.4th 138, 153-54 (3d Cir. 2022) (“[T]he principles of constitutional avoidance and judicial restraint guide us . . . to avoid deciding issues, especially constitutional ones, when [we] need not do so in order to resolve cases.”) . 12Page 12 Thus, we will join our sister circuit courts that assumed without deciding that at least some noncitizens are among “the people” entitled to Second Amendment rights.

C

At Bruen Step Two, we examine whether there is historical support for the challenged restriction by looking at analogues from before and at the time of the Second Amendment ’ s ratification.¹³ At this stage, the Government Page 13must “identify a well -established and representative historical analogue, not a historical twin, ” Range v. Att’y Gen. , 124 F.4th 218, 228 (3d Cir. 2024) (en banc) (' Range II ”) (emphases omitted) (quoting Bruen, 597 U.S. at 30), that “is consistent with the principles that underpin our regulatory tradition, ” Rahimi, 602 U.S. at 692 (citing Bruen, 597 U.S. at 26-31). To make this determination, we examine why the historical law was enacted (i.e., what problem it was intended to address), and how that law burdened the Second Amendment right. Rahimi, 602 U.S. at 692.

The Government here has carried its burden to show that § 922(g)(5)(B) “ is consistent with the principles that underpin our regulatory tradition. ” Id. The Government explains the people subject to the challenged law are individuals considered loyal to another sovereign and identifies old legal rules that reflect a principle that individuals considered disloyal to the sovereign could be disarmed.¹⁴ For Page 14this proposition, we consider English law, the law of the American colonies, and the laws of the States at the founding. Because these historical analogs demonstrate that disarming those disloyal to the sovereign is consistent with the Second Amendment, we conclude this provision is constitutional.

English common law distinguished between “aliens and natural-born subjects. Natural-born subjects are such as are born within the dominions of the crown of England, that is, within the . . . allegiance of the king; and aliens, such as are born out of it.” 1 William Blackstone, Commentaries *354. Under the common law, “natural -born subjects [had] a great variety of rights, which they acquire[d] by being born within the king’s ligeance,” while the rights of “aliens . . . [were] much more circumscribed, being acquired only by residence here, and lost whenever they remove[d].” Id. at *359. For example, “ aliens ” could not hold land, see id. at *360 (“If an alien could acquire a permanent property in lands, he must own an allegiance, equally permanent with that property, to the king of England; which would probably be inconsistent with that, which he owes [to] his own natural liege lord . . . .”), and “ land and gun ownership were historically linked, ” Carbajal-Flores, 143 F.4th at 883. '[T]he right to own guns in eighteenth -century England was statutorily restricted to the landed Page 15gentry.” Carbajal-Flores, 143 F.4th at 883 (alteration in original) (quoting Jimenez-Shilon, 34 F.4th at 1046 (citing Patrick J. Charles, Armed in America: A History of Gun Rights from Colonial Militias to Concealed Carry 51, 58 (2018))). An alien could own land if he became naturalized by swearing allegiance to the sovereign before Parliament, which “placed [him] in almost ‘exactly the same state as if he had been born in the' dominions of the Crown.' Id. at 884 (quoting Blackstone, supra, at *362; citing Patrick J. Charles, The Plenary Power Doctrine and the Constitutionality of Ideological Exclusions: An Historical Perspective, 15 Tex. L. & Pol. 61, 73 (2010) ('The entire basis of England's early immigration and naturalization laws were intertwined with the doctrine of allegiance .”)). The English Bill of Rights also limited gun ownership to those loyal to the Crown. It “guarantee[d] that ‘Protestants . . . may have Arms for their Defence suitable to their Conditions, and as allowed by Law. ’” 15 Bruen, 597 U.S. at 44 (omission in original) (quoting Page 16Laws that disarmed Catholics, though they would be unlawful under the First Amendment today, have a better case for being considered at Bruen Step Two because, even when Catholics were disarmed in some of the American colonies, it was 'on the basis of allegiance, not on the basis of faith.' Kanter, 919 F.3d at 457 (Barrett, J., dissenting) (quoting Robert H. Churchill, Gun Regulation, the Police Power, and the Right to Keep Arms in Early America: The Legal Context of the Second Amendment, 25 L. & Hist. Rev. 139, 157 (2007) (citing Virginia's 1756 'disarmament of all those refusing the test of allegiance')); see An Act for Disarming Papists, and Reputed Papists, Refusing to Take the Oaths to the Government, ch. 4 (1756), reprinted in 7 The Statutes at Large: Being A Collection of All the Laws of Virginia 35, 35-39 (William Waller Hening ed., 1820); Churchill, supra, at 157 (“That [Virginia] statute required all those claiming membership in the British body politic to swear allegiance to the Hanoverian dynasty and to the Protestant succession and to swear an oath abjuring the ecclesiastical authority of the Pope,” which was 'consistent with the undivided allegiance to the sovereign that had been the definition of membership in the English body politic since the Reformation.”); Adam Winkler, Gunfight: The Battle over the Right to Bear Arms in America 116 (2011) (citing a similar practice in Maryland); see also United States v. Gould, 163 F.4th 795, 804 (4th Cir. 2026) (on panel rehearing, in Second Amendment challenge to § 922(g)(4), noting that around the time of the French andPage 17 1689 English Bill of Rights, 1 W. & M. c. 2, § 7, in 3 Eng. Stat. at Large 417 (1689)).

Before the American Revolution, some “colonial governments prohibited any white person unwilling to affirm his allegiance to the British C rown from collecting firearms.” Adam Winkler, Gunfight: The Battle over the Right to Bear Arms in America 116 (2011). For example, Georgia disarmed indentured Acadians, a “group of French settlers and ancestors to the Cajuns, [who] ‘refused to be loyal subjects of the British government’ during the French and Indian War.” VazquezRamirez, 163 F.4th at 719 (Bumatay, J., concurring) (quoting Clayton E. Cramer, Colonial Firearm Regulation, 16 J. on Firearms & Pub. Pol'y 1, 23 (2004)). The disarmament of Acadians “was based solely on loyalty concerns.” Id. (citing Cramer, supra, at 23).

After the American Revolution began, the states disarmed British loyalists because of their allegiance to the English monarch and not to the American cause. See Kanter, 919 F.3d at 457 n.6 (Barrett, J., dissenting); see also CarbajalFlores, 143 F.4th at 885 (citing Robert H. Churchill, Gun Regulation, the Police Power, and the Right to Keep Arms in Early America: The Legal Context of the Second Amendment, 25 L. & Hist. Rev. 139, 158 (2007)). The Continental Congress called upon the States 'immediately to cause all Page 18persons to be disarmed . . . who are notoriously disaffected to the cause of America, or who have not associated, and shall refuse to associate, to defend, by arms, these United Colonies, against the hostile attempts of the British fleets and armies.” 4 Journals of the Continental Congress, 1774-1789, at 205 (Worthington Chauncey Ford ed., 1906). The states answered the call and disarmed those who refused to swear allegiance to the state and/or to the American cause.¹⁶

Page 20Thus, from English common law through the Revolutionary period around the time of ratification, there was a historical tradition of disarming those considered disloyal to the sovereign.

2

With this history in mind, we conclude that why and how § 922(g)(5)(B) restricts firearms possession is “consistent with the principles that underpin our regulatory tradition ” because it addresses the same allegiance concern as the historical laws and does so in the same way. Rahimi, 602 U.S. at 692.

As to why the restriction exists, “ [a]llegiance serves as a mark of trustworthiness,” and it “shows one’s willingness to accede to the terms of social order in exchange for the full benefits of citizenship. [Noncitizens], as a matter of their status, have not yet affirmed their allegiance to the sovereign. That has uniformly served as the basis for disarming them.” Carbajal-Flores, 143 F.4th at 888 (citing Kanter, 919 F.3d at 457-58 (Barrett, J., dissenting)). Section 922(g)(5)(B) disarms noncitizens who bear a “presumptive allegiance to a foreign state,' Vizcaino-Peguero, 175 F.4th at 44, and not to the United States, and thus addresses the same problem as the historical laws.¹⁷

Page 21As to the 'how' inquiry, the historic al laws and § 922(g)(5)(B) burden the right in the same way. Historically, governments disarmed individuals “unless and until they swore an oath of allegiance to the sovereign.” Carbajal-Flores, 143 F.4th at 888. An individual could obtain the right to bear arms after swearing an oath of allegiance. See id. at 884; DuqueRamirez , 161 F.4th at 1248 ('The founding-era laws banned arms-bearing by individuals presumed to be loyal to a foreign sovereign who failed to follow the procedure laid out by the legislature to demonstrate allegiance (then, the loyalty laws ).”); Range II, 124 F.4th at 248 n.13 (Phipps, J., concurring) (collecting early state laws regarding those who refused to swear allegiance to the American cause). Today § 922(g)(5)(B) “disarms persons unwilling or unable to swear the oath of allegiance and loyalty to the United States.' Vazquez-Ramirez, 163 F.4th at 711. Noncitizens disarmed under § 922(g)(5)(B) who follow the path prescribed by Congress and undergo the naturalization process, which culminates in taking the oath of renunciation and allegiance “as a demonstration of trustworthiness, ” 18 gain the right to bear Page 22arms. Duque-Ramirez, 161 F.4th at 1248; see 8 U.S.C. § 1448(a) (requiring oath of renunciation and pledge of allegiance to become a naturalized citizen). Section 922(g)(5)(B) addresses the same loyalty concern as the historical laws and does so in the same way.

Because § 922(g)(5)(B) is relevantly similar to the historical laws and our national tradition of firearm regulation, it does not violate the Second Amendment.

For the foregoing reasons, we will affirm.

Page 23The Majority Opinion makes a needless assumption, the breadth of which is staggering, viz. , that all nonimmigrant visa holders are part of “ the people ” and therefore have full Second Amendment rights. U.S. Const. amend. II. A nonimmigrant is a foreign national with a permanent residence abroad who comes to the United States on a temporary basis, such as for tourism, study, business, medical treatment, or transient travel.¹ Whatever are the precise contours of 'the people,' that term certainly does not include every such visitor. Applying that principle here allows resolution of this case at Bruen step one as opposed to Bruen step two, and such a disposition would not be predicated on any legal assumptions.² For those reasons, elaborated below, I respectfully concur in the judgment.

By federal statute, 18 U.S.C. § 922(g)(5)(B), it is generally illegal for nonimmigrant visa holders to possess a firearm or ammunition. Id. 3 In this case, while Diego Edgardo Aleman- Page 24Lozano, a citizen of El Salvador, was in this country on a temporary visa, he was charged with and conditionally pleaded guilty to possession of a firearm in violation of § 922(g)(5)(B). He now facially challenges § 922(g)(5)(B) as violative of the Second Amendment. To succeed, he must negative every conceivable application of the statute, which means that he must demonstrate that each and every nonimmigrant visa holder is part of ‘ the people ’ whose rights to keep and bear arms are protected by the Second Amendment. See United States v. Rahimi , 602 U.S. 680, 693 (2024) (explaining that a facial challenge “requires a defendant to ‘establish that no set of circumstances exists under which the Act would be valid’” (quoting United States v. Salerno , 481 U.S. 739, 745 (1987))). It takes minimal effort to conclude that he cannot make that 'most difficult' showing here. Id. (explaining that a facial challenge “is the ‘most difficult challenge to mount successfully’” (quoting Salerno , 481 U.S. at 745)).

The term ‘ the people ’ as used in the Constitution is “a term of art' with consistent meaning. United States v. VerdugoUrquidez , 494 U.S. 259, 265 (1990). As defined by the Supreme Court , ‘the people’ refers to “a class of persons who are part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community, ' id. , with the understanding that the relevant national community is the national “political community, ” Wolford v. Lopez , 146 S. Ct. 2032, 2043 (2026) (quoting District of Columbia v. Heller , 554 U.S. 570, 580 (2008)).⁴ While not every contour of the national political Page 25community has been identified, adult citizens are part of the people, 5 and excludable aliens are not.⁶ It may also be that nonimmigrants are, as a class, not part of the national political community as they are citizens of another country with permanent residences abroad, and they cannot vote in federal elections, see 18 U.S.C. § 611, or serve on federal juries, see 28 U.S.C. § 1865(b)(1). But it is not necessary in this case to determine whether nonimmigrants, as a class, are not part of ‘the people . ’

Rather, Aleman-Lozano 's facial challenge to § 922(g)(5)(B) will fail if one nonimmigrant visa holder is outside of the national political community. And if nothing else, receipt of one type of nonimmigrant visa – the C-1 transit visa, see 8 U.S.C. § 1101(a)(15)(C)(i) – does not induct foreign nationals into ‘ the people. ’ A C-1 transit visa allows foreign nationals to pass through this country to reach another foreign country and has a maximum duration of stay of 29 days. See Page 26id. ; 22 C.F.R. § 41.71.⁷ The limitations on the visa – it is given to foreign nationals with permanent residence abroad who are travelling through this country transiently – prevent C-1 transit visa holders from developing a 'sufficient connection' with this country to be considered part of the national political community. Verdugo-Urquidez , 494 U.S. at 265; see Wolford , 146 S. Ct. at 2043. Consequently, C-1 transit visa holders are not part of ‘ the people, ’ and the Second Amendment does not protect their ability to keep and bear arms.

That conclusion is fatal to AlemanLozano’s facial challenge. It is therefore unnecessary for the resolution of this case to broadly assume that each and every nonimmigrant visa holder is part of ‘ the people. ’