United States v. Escobar-Temal

1

UNITED STATES OF AMERICA v. MILDER ESCOBAR-TEMAL

No. 3:22-cr-00393

United States District Court, M.D. Tennessee, Nashville Division

June 21, 2023

MEMORANDUM OPINION

ELI RICHARDSON, UNITED STATES DISTRICT JUDGE.

Pending before the Court is Defendant's motion to dismiss the Indictment (Doc. No. 19, “Motion”). The Government filed a response (Doc. No. 24 “Response”).

For the reasons discussed herein, the Court will deny Defendant's Motion.

BACKGROUND

The Government filed a one-count indictment against Defendant alleging:

On or about October 12, 2022, in the Middle District of Tennessee, MILDER ESCOBAR-TEMAL, knowing he was an alien illegally and unlawfully in the United States, knowingly possessed a firearm, to wit: a Glock Model 23, .40 caliber pistol, a Taurus Model PT 809 9x19mm pistol, and a Hi-Point Model C9 9x19mm pistol; and the firearm was in and affecting commerce. In violation of Title 18, United States Code Sections 922(g)(5) and 924.

(Doc. No. 1). 18 U.S.C. § 922 provides, in relevant part:

(g) It shall be unlawful for any person

(5) who, being an alien

(A) is illegally or unlawfully in the United States;

to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.

18 U.S.C. § 922(g)(5)(A).

Defendant filed the Motion pursuant to Fed. R. Crim. P. 12(b)(3)(B). According to Defendant, dismissal is appropriate because 18 U.S.C. § 922(g)(5) is unconstitutional. He argues that (a) the Second Amendment protects the right of unlawfully present aliens such as Defendant to keep and bear arms and (b) “[t]he government cannot show a historical tradition of prohibiting the possession of firearms based on immigration status.” (Doc. No. 19 at 4-5). In its Response, the Government unsurprisingly disagrees.

LEGAL STANDARD

A defendant can move to dismiss an indictment for failing to state an offense. Fed. R. Crim. P. 12(b)(3)(B). At this stage, “the indictment must be tested by its sufficiency to charge an offense” United States v. Sampson, 371 U.S. 75, 79 (1962), and “the allegations of the indictment must be taken as true,” Boyce Motor Lines, Inc. v. United States, 342 U.S. 337, 343 n.16 (1952).

DISCUSSION

The Supreme Court announced, in New York State Rifle &amp Pistol Ass'n Inc. v. Bruen, 142 S.Ct. 2111 (2022), a change in how courts must approach Second Amendment challenges to government action. Under the now-required analysis:

When the Second Amendment's plain text covers an individual's conduct, the Constitution presumptively protects that conduct. The government must then justify its regulation by demonstrating that it is consistent with the Nation's historical tradition of firearm regulation. Only then may a court conclude that the individual's conduct falls outside the Second Amendment's “unqualified command.”

Bruen, 142 S.Ct. at 2129-30.

As indicated above, Defendant argues that (1) the Second Amendment's plain text extends to unlawfully present aliens because (according to Defendant) they are included within the Second Amendment's term, “the people” and (2) the Government cannot establish that there is a history and tradition of prohibiting firearm possession based on immigration status. (Doc. No. 19 at 4-5).

In order for Defendant to succeed on his Motion, Defendant must succeed on both of his arguments. The Court addresses the two arguments in turn.

A. Plain text

As an initial matter, the Court notes that constitutional rights are not necessarily limited to citizens and can apply to non-citizens, and more specifically to aliens unlawfully present in the country. See, e.g., Yoc-Us v. Att'y Gen. United States, 932 F.3d 98, 101, 104 (3d Cir. 2019) (holding that the Fourth Amendment applies to unlawfully present aliens (citing Wong Wing v. United States, 163 U.S. 228, 238 (1896) (holding that the Fourteenth, Fifth and Sixth Amendments apply to aliens)). And the Government does not argue otherwise. The issue here is whether the Second Amendment in particular applies to non-citizens, including aliens unlawfully in the country.

Asserting that this question should be answered in the affirmative, Defendant first argues that his conduct of possessing a firearm as an unlawfully present alien is protected by the Second Amendment's plain text. The Government argues that Defendant's conduct is outside the scope of the Second Amendment because its reference to “the people” refers only to citizens of the United States. (Doc. No. 24 at 5-6).

The Second Amendment states, “[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. It is undisputed that Defendant's alleged possession of a firearm constitutes “keep[ing] and bear[ing] Arms” under the Second Amendment. Thus, the only disputed question bearing on whether the Second Amendment, by its terms, covers Defendant's conduct is whether Defendant, as an alleged unlawfully present resident of the United States, is a member of “the people.”

The phrase “the people” appears five times in the Bill of Rights, namely in the First, Second, Fourth, Ninth, and Tenth Amendments. U.S. Const. amends. I, II, IV, IX, X. Noting that the meaning of “the people” is consistent throughout these five amendments, the Supreme Court has twice defined “the people” in recent cases:

While this textual exegesis is by no means conclusive, it suggests that ‘the people' protected by the Fourth Amendment, and by the First and Second Amendments, and to whom rights and powers are reserved in the Ninth and Tenth Amendments, 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.

United States v. Verdugo-Urquidez, 494 U.S. 259, 265 (1990).

In D.C. v. Heller, 554 U.S. 570, 580 (2008), the Court approvingly quoted Verdugo-Urquidez 's “national community” definition while also stating, “in . . . provisions of the Constitution that mention ‘the people,' the term unambiguously refers to all members of the political community, not an unspecified subset.” The Heller court was neither amending Verdugo-Urquidez 's definition nor attempting to resurrect Dred Scott v. Sandford, 60 U.S. 393, 404, 15 L.Ed. 691 (1857), superseded (1868) (“The words ‘people of the United States' and ‘citizens' are synonymous terms, and mean the same thing.”). Thus, contrary to the Government's argument, “political community” should not be understood as consisting only of citizens. Rather, it refers to members of the “national community” who have such a connection with the United States that they have a significant vested interest in the political processes of the nation and are represented in politics (regardless of the ability to vote). This surely can include people who are noncitizens.^[1] This is further confirmed by the text of the Constitution itself, which uses the term “Citizen of the United States” elsewhere, thus suggesting the Second Amendment does not protect only “Citizen[s] of the United States” because otherwise that term (rather than “the people”) would have been used in the Second Amendment. See e.g. U.S. Const. art. 1, § 2, § 3; Id. at art. 2, § 1.

Furthermore, “the people” may, in certain circumstances, encompass unlawfully present aliens. Though the Court did not squarely decide whether the Fourth Amendment protects “illegal aliens,” Verdugo-Urquidez, 494 U.S. at 272, its definition of “the people” suggests that anyone who “develop[s] sufficient connection with this country to be considered part of that [national] community” is included in “the people.” An alien resident, lawfully or unlawfully in the United States, could develop such connections such that they are part of the national community. Being unlawfully present in the United States does not necessarily create an insurmountable barrier to developing community connections and thus becoming being part of “the people.”

That said, because the Court can resolve Defendant's motion based on whether history and tradition supports the challenged regulation, the Court will not come to a definitive conclusion regarding whether Defendant is a member of “the people” and will assume arguendo that he is. See United States v. Perez, 6 F.4th 448 (2d Cir. 2021) (assuming arguendo that the Second Amendment protects unlawfully present aliens); United States v. Torres, 911 F.3d 1253 (9th Cir. 2019) (same); United States v. Jimenez-Shilon, 34 F.4th 1042 (11th Cir. 2022) (same).

B. Historical tradition

“When confronting such present-day firearm regulations, this historical inquiry that courts must conduct will often involve reasoning by analogy-a commonplace task for any lawyer or judge. Like all analogical reasoning, determining whether a historical regulation is a proper analog for a distinctly modern firearm regulation requires a determination of whether the two regulations are ‘relevantly similar.'” Bruen, 142 S.Ct. at 2132 (quoting C. Sunstein, On Analogical Reasoning, 106 Harv. L. Rev. 741, 773 (1993)).

The undersigned has repeatedly noted that the notion of “similarity” is a subjective and relative one, and that, relatedly, an ill-defined continuum runs between “similar” and “different.” E.g., Doe #11 v. Lee, 609 F.Supp.3d 578, 606 n.31 (M.D. Tenn. 2022). The best the Court can do is call it like it sees it when it comes to “relative similarity,” following whatever guidance he can glean from Bruen on this topic.

Though the Bruen Court did not “provide an exhaustive survey of the features that render regulations relevantly...