In United States v. Rahimi (2024), the Supreme Court reaffirmed that the Second Amendment permits legislatures to disarm individuals who pose a “credible threat” to the safety of others. The Court upheld 18 U.S.C. § 922(g)(8), which bars firearm possession by individuals subject to certain domestic violence restraining orders, emphasizing that when an individual presents a demonstrated danger, temporary disarmament fits comfortably within our historical tradition.
But Rahimi did not resolve a critical question: Can legislatures treat entire categories of people as dangerous, and disarm them categorically?
That question is squarely presented in challenges to 18 U.S.C. § 922(g)(5), the federal prohibition on firearm possession by persons “illegally or unlawfully in the United States.” In the wake of District of Columbia v. Heller (2008) and New York State Rifle & Pistol Ass’n v. Bruen (2022), lower courts have largely upheld § 922(g)(5). But they have done so through a patchwork of rationales. Some have concluded that undocumented immigrants are outside “the people” protected by the Second Amendment. Others have analogized them to historically disarmed groups like British Loyalists. Still others—implicitly or explicitly—have accepted the premise that unlawful presence itself indicates dangerousness or a propensity for lawbreaking.
In Dangerousness & the Undocumented, 114 Geo. L. J. 1 (2026), I argue that if courts are to take seriously the methodological commitments of Bruen and Rahimi, they must demand more than historical abstraction or stereotypes regarding the safety threat presented by noncitizens. The emerging judicial reliance on categorical dangerousness in noncitizen gun cases not only conflicts with available empirical evidence, it also risks reviving a deeply troubling tradition of judicial xenophobia. The stakes of this concern extend beyond firearms regulation or possession by unlawfully present noncitizens. How courts resolve § 922(g)(5) cases implicates deeper questions about constitutional membership, equal application of doctrinal frameworks, and the persistence of the immigrant–danger trope in American law.
I. Three Judicial Pathways to Upholding § 922(g)(5)
Before turning to Rahimi’s focus on dangerousness and threat, it is worth summarizing the other approaches that federal courts have taken to analyzing the Second Amendment rights of noncitizens. Two methods are based in excluding noncitizens (or subcategories of noncitizens) from the ambit of the Second Amendment altogether. A third attempts to ground 922(g)(5) in Founding era analogues. Federal courts have dramatically undertheorized each of these approaches.
A. Immigration Exceptionalism Meets the Second Amendment
1. Excluding the Undocumented from “the People”
Several circuits have held that undocumented immigrants fall outside the Second Amendment’s protection because they are not part of “the people” referenced by the Second Amendment.
In United States v. Portillo-Munoz, the Fifth Circuit concluded that the Second Amendment protects “law-abiding, responsible citizens,” drawing from language in Heller. The Eighth Circuit in United States v. Sitladeen reaffirmed that position post-Bruen, holding that undocumented immigrants are not among “the people” entitled to keep and bear arms. The Eleventh Circuit in United States v. Jimenez-Shilon adopted a similar approach.
These analyses draw support from language in District of Columbia v. Heller referring to “law-abiding, responsible citizens” as the class of individuals protected by the Second Amendment. But Heller also emphasized that “the people” is a term used consistently across the Bill of Rights. If “the people” in the Second Amendment excludes noncitizens in general or unlawfully present noncitizens in particular, what of the Fourth Amendment’s protection against unreasonable searches and seizures? Or the First Amendment’s assembly and petition rights?
The Supreme Court’s fractured opinion in United States v. Verdugo-Urquidez suggested that “the people” for Fourth Amendment purposes includes noncitizens who have developed substantial connections to the United States. And longstanding precedents—such as Yick Wo v. Hopkins and Wong Wing v. United States—confirm that noncitizens, including those unlawfully present, may invoke core constitutional protections in discriminatory regulation of their social and economic lives and in criminal proceedings.
As I have argued elsewhere, reading “the people” to exclude undocumented immigrants for Second Amendment purposes risks destabilizing this broader constitutional settlement and demonstrates that this interpretive move cannot easily be confined to guns.
2. Immigration Plenary Power and Constitutional Exceptionalism
A second rationale advanced by courts invokes Congress’s plenary power over immigration. In United States v. Vazquez-Ramirez (E.D. Wash. 2024), the court concluded that because § 922(g)(5) regulates noncitizens, it falls within the political branches’ immigration authority and thus warrants deference outside of Bruen’s history-and-tradition test. As I have argued elsewhere, this tack is highly undertheorized.
The Supreme Court has indeed afforded substantial deference to the political branches in matters of admission and removal. Decisions such as Kleindienst v. Mandel, Fiallo v. Bell, and Trump v. Hawaii reflect that tradition. But § 922(g)(5) is not an entry policy, admissions category, or deportation law. It is a domestic criminal prohibition enforced in Article III courts, carrying the possibility of imprisonment. The Court has not extended plenary-power deference to ordinary domestic criminal statutes applied in federal court.
Indeed, immigration plenary power has never operated as a general override of the Bill of Rights in criminal prosecutions. To the contrary, deportable noncitizens prosecuted for crimes routinely invoke constitutional protections. Extending immigration exceptionalism to dilute Second Amendment methodology would create a two-tier constitutional structure: one for citizens, another for noncitizens, whether lawfully or unlawfully present. If immigration exceptionalism can override Bruen’s methodology in § 922(g)(5) cases, it is difficult to see what limits would confine that principle.
B. Historical Analogues?
Some courts have analogized undocumented immigrants to groups historically disarmed during the Founding era. Reliance on some historical citizenship-based gun restrictions raises normative concerns. Many nineteenth- and early twentieth-century alien-disarmament laws were intertwined with racial hierarchy and white supremacist projects. These “sordid sources” provide a dubious justification for modern regulations.
Moreover, under Bruen, not every historical practice is automatically constitutional; courts must assess whether the modern regulation matches the “how and why” of the historical analogue. Thus, as I have argued elsewhere, the other proffered source of historical justification – the disarming of British Loyalists – also fails. Revolutionary-era laws targeting Loyalists were enacted in a context of declared war and insurrection. They were temporary, politically motivated measures directed at individuals perceived as hostile to the nascent republic. Each provided opportunities for the targeted individuals to declare their loyalty to the revolution and thereby avoid disarmament.
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Sustained examination renders most of the post-Heller, post-Bruen federal court approaches to 922(g)(5) doctrinally, theoretically, and historically unsound. Thus, courts are left trying to determine whether Bruen’s history-focused methodology permits legislatures to impute dangerousness to groups of individuals categorically, and thereby, criminalize their firearm possession.
II. Dangerousness in Doctrine: From Bruen to Rahimi
Bruen instructed courts to assess firearm regulations by reference to “text, history, and tradition.” While it rejected means-end scrutiny, it did not deny that legislatures may disarm dangerous individuals. Indeed, prior to Bruen, Justice Barrett—then a circuit judge—had written in dissent that “legislatures have the power to prohibit dangerous people from possessing guns.” (Kanter v. Barr (7th Cir. 2019) (Barrett, J., dissenting)).
Rahimi reaffirmed the idea that historical analogues might support disarming dangerous individuals. There, the Court looked to Founding era “surety” and “going armed” laws to demonstrate a tradition of disarming individuals who posed credible threats of violence. But the statute upheld in Rahimi (§ 922(g)(8)) operates only after an individualized judicial finding of dangerousness. Section 922(g)(5), in contrast, disarms millions of people categorically, based solely on immigration status.
After Rahimi, dangerousness has become the doctrinal fulcrum. But the move from individualized findings (as in § 922(g)(8)) to categorical disarmament (as in § 922(g)(5)) requires more than intuition. It requires evidence. An important doctrinal question then is whether immigration status can serve as a constitutionally adequate proxy for dangerousness.
Many courts upholding § 922(g)(5), before and after Rahimi, ultimately rely—implicitly or explicitly—on dangerousness. The reasoning takes various forms. Sometimes the argument is framed in terms of general lawlessness: unlawful presence reflects disregard for legal norms. Sometimes it invokes enforcement concerns: individuals subject to removal may evade authorities. Sometimes it rests on congressional judgment: lawmakers may treat undocumented immigrants as posing heightened public safety risks.
III. Are Noncitizens Dangerous In Ways that Merit Disarmament?
The hypothesis or unfounded claim that noncitizens are especially prone to criminality and violence—i.e., dangerousness—is not new. It has been a recurring feature of American political discourse, from the Chinese exclusion era to the incarceration of Japanese Americans during World War II; from Cold War suspicions of foreigners to contemporary debates over the need for militarized and harsh border enforcement. Equally long-standing, however, is the lack of any empirical evidence that would support the spurious claims of immigrant threat made by elected officials and sometimes adopted by federal courts.
Part of the conflation between immigrants and crime stems from the way federal criminal statistics treat immigration offenses. Federal law criminalizes unlawful entry and unlawful reentry under 8 U.S.C. §§ 1325 & 1326, which means that migrants can become the subjects of criminal prosecutions simply for crossing the border or returning after removal. These immigration offenses are different from the kinds of non-migration related, public safety concerns that firearm regulations are meant to address. They involve no violence, property damage, or human victims. Moreover, many unlawfully present noncitizens—especially those who entered legally and later overstayed visas—cannot be prosecuted under these migration-related crime statutes at all.
To be sure, unauthorized presence in the country is civil or administrative violation under immigration law. But a civil violation tells us very little about whether undocumented immigrants are more likely to commit violent crime or misuse firearms. Equating civil violations with dangerousness stretches the dangerousness principle into a general license for legislatures to disarm wide swathes of the population, regardless of citizenship. In this regard, it is worth noting that the Third Circuit’s en banc decision in Range v. Attorney General (2024) rejected the categorical application of the federal felon-in-possession statute to a nonviolent offender convicted of food stamp fraud. If a nonviolent felony does not suffice as a proxy for dangerousness to justify permanent disarmament, it is difficult to see how civil immigration violations can.
As it relates to serious crimes or the type of violent crime that would raise gun possession concerns, noncitizens, including the undocumented, are less likely to engage in risky behavior, tend to lower the crime and violence rate into communities to which they move, and are less likely to be incarcerated than native-born. Social scientists refer to this phenomenon as the “immigrant paradox.” Despite socioeconomic disadvantages that might predict higher crime rates—such as poverty, labor market barriers, and marginalization—immigrant communities consistently show lower rates of criminal behavior. Scholars offer multiple explanations for this pattern: selection effects (those who migrate are often positively selected on ambition and risk-aversion), strong family and community ties, economic revitalization in immigrant neighborhoods, and the deterrent effect of potential deportation. Whatever the mechanism, the consistent empirical finding is that immigrants—including undocumented immigrants—commit violent crimes at lower rates than native-born citizens.
The relationship between immigration and crime has been studied for more than a century. Early twentieth-century government investigations—including the Dillingham Commission and the Wickersham Commission—examined whether immigrants were more prone to criminal behavior. Both ultimately found no evidence that immigrants were more criminal than the native-born population. More recent data underscores the point. As sociologist Rubén Rumbaut and co-authors have documented, the U.S. foreign-born population more than doubled between 1990 and 2015 while violent and property crime rates fell dramatically during the same period. Ran Abramitzky and his colleagues document that noncitizens have had lower incarceration rates per capita than the U.S. born for 150 years, from 1870-2020.
Studies of crime rates produce consistent results. A comprehensive 2018 meta-analysis by Graham Ousey and Charis Kubrin reviewing dozens of empirical studies found that most research shows either no statistically significant relationship or a negative relationship between immigration and crime. Strikingly, the same results attain even when studies focus on unlawfully present noncitizens, who are the primary focus of § 922(g)(5). One of the most widely cited studies is Michael Light and Ty Miller’s longitudinal analysis of all fifty states from 1990–2014. The study found that higher concentrations of undocumented immigrants were associated with statistically significant decreases in violent crime, including murder, robbery, and aggravated assault.
Subsequent research at the metropolitan level produced similar findings. A study by Robert Adelman and co-authors examining unauthorized immigration in U.S. metro areas found that increases in undocumented immigration corresponded with decreases in property crime such as burglary and larceny. In addition, Texas provides a particularly revealing dataset because it tracks crime by immigration status. The Cato Institute’s analysis of Texas criminal records demonstrates that noncitizens—both documented and undocumented—are convicted of crimes at lower rates than native-born citizens and had lower homicide conviction rates than U.S. citizens.
Other research has examined jurisdictions with “sanctuary” or immigrant-friendly policies—places that limit cooperation with federal immigration enforcement. Contrary to spurious and ill-supported claims that such policies increase crime, empirical studies show the opposite. Studies by David Hausman and Tom K. Wong find lower crime rates in sanctuary jurisdictions compared to otherwise similar communities.
V. Implications for Second Amendment Doctrine
The trope of immigrant criminality and dangerousness has been a persistent judicial motif, punctuating jurisprudential nadirs like the Court’s acquiescence to Chinese exclusion or Japanese-American incarceration. If dangerousness analysis in the § 922(g)(5) cases continues without reference to empirical reality, federal courts risk reinscribing that racist and xenophobic logic. More generally, immigration status becomes a proxy not only for removability, but for diminished constitutional membership, with little textual or historical reason to support that conclusion.
Going forward, the debate over § 922(g)(5) raises questions that reach beyond firearms regulation:
- What role should empirical evidence play in a post-Bruen world? If history authorizes disarmament of dangerous individuals, must courts assess whether a modern category actually tracks empirical evidence of dangerousness?
- Is categorical disarmament ever justified absent individualized findings? Rahimi involved judicial determinations of threat. Section 922(g)(5) does not.
- How should courts reconcile § 922(g)(5) with emerging as-applied challenges to other status-based prohibitions? If nonviolent felons may not be categorically disarmed in some circumstances, what distinguishes them from civil immigration violations?
- Does immigration status operate as a constitutional fault line? If plenary power or dangerousness rationales dilute Second Amendment scrutiny here, might they do so elsewhere?
As lower courts continue to grapple with § 922(g)(5), and as the Supreme Court refines its post-Bruen, post-Rahimi methodology, the treatment of noncitizens and undocumented immigrants will serve as a revealing test case. If dangerousness is to function as a principled constitutional limit, it cannot rest on stereotype. And if constitutional methodology is to maintain legitimacy, it must apply even when the rightsholders are politically unpopular.
The intersection of immigration and the Second Amendment thus offers more than a niche doctrinal puzzle. It provides a window into how courts define constitutional community, how they evaluate risk, and how they resist—or succumb to—longstanding narratives of foreign danger. In that sense, the future of § 922(g)(5) may tell us as much about constitutional equality as it does about guns.
