crs_reports: R49360

Congressional Research Service reports with summaries, authors, and topic classifications.

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R49360 The Second Amendment and Aliens Unlawfully Present in the United States 2026-09-25T04:00:00Z 2026-09-26T05:54:56Z Active Reports Amin Aminfar   The Second Amendment to the Constitution protects “the right of the people to keep and bear Arms.” In New York State Rifle and Pistol Ass’n v. Bruen, 597 U.S. 1, 17 (2022), the Supreme Court explained that courts examining whether a law infringes on this right should look first to whether the text of the Second Amendment covers the regulated conduct—for example, whether an item covered by the regulation is covered by the term “Arms”—and, if it does, courts should then determine whether the law is consistent with the historical tradition of firearm regulation in the United States. If the law is not consistent with that tradition, then it is considered an unconstitutional infringement of the Second Amendment. This two-step framework has been applied by the Supreme Court and federal courts of appeals to numerous firearms regulations, including a federal statute, 18 U.S.C. § 922, that prohibits possession of firearms by nine categories of persons. One of the provisions in that statute, 18 U.S.C. § 922(g)(5)(A), bars possession of firearms by aliens “illegally or unlawfully in the United States.” The Supreme Court has not addressed that provision with respect to the Second Amendment directly, but it has interpreted how other constitutional provisions apply to aliens unlawfully present in the United States. Some of these provisions have been interpreted as applying to aliens regardless of the legality of their presence in the United States, but the Supreme Court has nevertheless qualified the protection offered by those provisions, explaining that the “plenary” power that Congress generally enjoys over matters of immigration empowers it to legislate with respect to aliens in a manner that it could not with respect to citizens, at least in some circumstances. See Mathews v. Diaz, 426 U.S. 67, 80 (1976). In other cases, the Supreme Court has analyzed whether aliens are included within the scope of a constitutional provision at all, specifically, whether they should be considered among “the people” when that term is used in the Constitution. See United States v. Verdugo-Urquidez, 494 U.S. 259, 265 (1990). Although not offering a definitive answer to this question, these cases have served as guideposts for lower courts in assessing whether the statutory provision prohibiting possession of firearms by unlawfully present aliens is consistent with the Second Amendment. All ten of the federal courts of appeals that have considered this question have agreed that 18 U.S.C. § 922(g)(5)(A) is constitutional, but they have not agreed on the analytical path to get to this result. Some of these courts have concluded that unlawfully present aliens are among “the people,” but that disarming them is also within the historical tradition of the United States, rendering the provision constitutional. See, e.g., United States v. Escobar-Temal, 161 F.4th 969, 978, 984 (6th Cir. 2025). Others have rejected inclusion of unlawfully present aliens among “the people” in the first instance, making their possession of firearms entirely unprotected by the Second Amendment. See, e.g., United States v. Murillo-Lopez, 151 F.4th 584, 591 (4th Cir. 2025). A third category of courts have decided that they should not determine whether unlawfully present aliens are included among “the people” because it is sufficient to find that, included or not, they may be disarmed consistent with the historical tradition of the United States. United States v. Vizcaino-Peguero, 175 F.4th 34, 40 (1st Cir. 2026). These varying approaches reflect the complexity surrounding the constitutional rights of aliens in the United States and a recurring thread that, even when courts find that they are included within the scope of a constitutional provision, aliens may not enjoy the same degree of constitutional protection that is accorded to U.S. citizens. Should the Supreme Court choose to clarify the meaning of “the people” as to unlawfully present aliens under the Second Amendment, it would have significant consequences with respect to the constitutional protections that such aliens could claim and the coordinate scope of Congress’s plenary power over aliens unlawfully present in the United States. https://www.congress.gov/crs_external_products/R/PDF/R49360/R49360.1.pdf https://www.congress.gov/crs_external_products/R/HTML/R49360.html

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