Illegal Aliens, Guns, and Strict Liability

Federal law bans felons, illegal aliens, and others from knowingly possessing guns (or ammunition); does the government also have to show that the defendant knew he was a felon, illegal alien, or within some other prohibited category? [UPDATE: Last paragraph corrected.]


Yesterday, the Supreme Court agreed to consider the question (which then-Judge Gorsuch had answered "yes" in an earlier opinion).

Title 18 U.S.C. § 922(g) basically provides that, "It shall be unlawful for any person" who has a felony conviction, who is an illegal alien, or who belongs to some other categories, "to possess" or "receive" "any firearm or ammunition." Title 18 U.S.C. § 924(a) provides that such people shall be punished if they "knowingly violate[]" § 922(g).

The "knowingly" requirement is often relevant when the question is whether someone knowingly possessed a gun. (Say the gun was in a bag they were carrying, and they claimed they were just carrying it for a friend and didn't know what was in it.) But what about the situations—admittedly rare ones—where the defendant claims he doesn't know that he has a disqualifying conviction, or that his right to remain in the country has lapsed, and he has turned from a formerly lawful visitor to an illegal alien?

That's the question facing the Court in Rehaif v. U.S. Rehaif is a citizen of the United Arab Emirates, who was let into the country on a student visa to study mechanical engineering; he apparently failed out, which meant his visa expired as a result. But Rehaif stayed in the country, and went to a shooting range, where he rented a gun and bought ammunition. Six days later, an employee at the hotel at which Rehaif was staying called the police to say Rehaif was acting suspiciously; when an FBI agent came to speak to Rehaif, he learned about Rehaif's trip to the shooting range (at which he possessed a gun) and his continued possession of ammunition. Rehaif was prosecuted for both, on the theory that he was an illegal alien.

There is some evidence that Rehaif knew he was no longer legally present: The university had e-mailed him to say that, and the agent claims that Rehaif had admitted as much. But Rehaif's lawyer says he wanted to argue that Rehaif hadn't read the e-mail, and that the agent was lying about the admission (the conversation had not been recorded). It's therefore important whether Rehaif's knowledge of his status is legally relevant, and that's what the Court is set to decide.

Here, by the way, is what Justice Gorsuch said about the matter in U.S. v. Games-Perez, when he was stilled a Tenth Circuit judge; that case involved a man who claimed he didn't know he was a felon, which raises the same legal question:

Mr. Games-Perez was prosecuted under 18 U.S.C. § 924(a)(2) for "knowingly violat[ing]" § 922(g), a statute that in turn prohibits (1) a convicted felon (2) from possessing a firearm (3) in interstate commerce. But to win a conviction under our governing panel precedent in United States v. Capps (10th Cir. 1996), the government had to prove only that Mr. Games-Perez knew he possessed a firearm, not that he also knew he was a convicted felon….

[I]t is difficult to see how someone might "knowingly violate[]" § 922(g) without knowing he satisfies all the substantive elements that make his conduct criminal—especially the first substantive element Congress expressly identified. For the reader interested in more on all this, my concurring panel opinion offers it.

For current purposes, just stating Capps's holding makes the problem clear enough: its interpretation—reading Congress's mens rea requirement [i.e., a requirement of a culpable mental state -EV] as leapfrogging over the first statutorily specified element and touching down only at the second listed element—defies grammatical gravity and linguistic logic. Ordinarily, after all, when a criminal statute introduces the elements of a crime with the word "knowingly," that mens rea requirement must be applied "to all the subsequently listed [substantive] elements of the crime."

This court's failure to hold the government to its congressionally specified burden of proof means Mr. Games-Perez might very well be wrongfully imprisoned. After all, a state court judge repeatedly (if mistakenly) represented to him that the state court deferred judgment on which his current conviction hinges did not constitute a felony conviction. Given these repeated misstatements from the court itself, Mr. Games-Perez surely has a triable claim he didn't know his state court deferred judgment amounted to a felony conviction. Yet, because of our precedent in Capps, the government never had to face a trial on this question; it never had to prove its case that Mr. Games-Perez knew of his felon status. It was allowed instead to imprison him without the question even being asked.

There can be fewer graver injustices in a society governed by the rule of law than imprisoning a man without requiring proof of his guilt under the written laws of the land. Yet that is what Capps permits, excusing the government from proving an essential element of the crime Congress recognized. When the case was before the panel, I was bound by Capps and forced by my duty to precedent to countenance its injustice. Now, though, the case is before the en banc court. Here, Capps does not control my vote or require the perpetuation of this wrong, and here I believe it should be overruled….

The government seeks to defend Capps entirely on the basis of a legislative history exegesis found in the Fourth Circuit's divided decision in United States v. Langley (4th Cir. 1995) (en banc). According to the government, Langley shows that, although 18 U.S.C. § 922(g)'s predecessor statutes did not contain an explicit mens rea, courts interpreting them required the government to prove that the defendant knew the object he possessed was a firearm—but not that the defendant knew of his felon status. From this, the government surmises, when Congress added the word "knowingly" to § 924(a), it must have meant only to adopt this judicial gloss and no more.

The problem with all this is that hidden intentions never trump expressed ones. Whatever weight courts may give to judicial interpretations of predecessor statutes when the current statute is ambiguous, those prior interpretations of now defunct statutes carry no weight when the language of the current statute is clear.

When the current statute's language is clear, it must be enforced just as Congress wrote it. And whatever the legislative history may or may not suggest about Congress's collective "intent" (putting aside the difficulties of trying to say anything definitive about the intent of 535 legislators and the executive, and putting aside as well the Langley dissent's powerful rejoinders about Congress's putative intent in this case), the law before us that survived the gauntlet of bicameralism and presentment couldn't be plainer.

By their express terms, §§ 922(g) and 924(a)(2) do not authorize the government to imprison Mr. Games-Perez and people like him unless and until the government can show they knew of their felon status at the time of the alleged offense. The government did not attempt to prove as much here. And that is all we need to know. Congress could have written the law differently than it did, and it is always free to rewrite the law when it wishes. But in our legal order it is the role of the courts to apply the law as it is written, not some different law Congress might have written in the past or might write in the future.

Besides, even if the government could somehow manage to squeeze an ambiguity out of the plain statutory text before us, it faces another intractable problem. The Supreme Court has long recognized a "presumption" grounded in our common law tradition that a mens rea requirement attaches to "each of the statutory elements that criminalize otherwise innocent conduct."

Together §§ 922(g) and 924(a)(2) operate to criminalize the possession of any kind of gun. But gun possession is often lawful and sometimes even protected as a matter of constitutional right. The only statutory element separating innocent (even constitutionally protected) gun possession from criminal conduct in §§ 922(g) and 924(a) is a prior felony conviction. So the presumption that the government must prove mens rea here applies with full force. See Staples v. United States (1994); D.C. v. Heller (2008). Yet, for its part the government never explains how a much disputed legislative record can overcome this longstanding interpretive presumption….

[UPDATE: Note correction to this paragraph below.] One more twist: § 922(g), besides banning gun possesion by illegal aliens, also bans gun possession by legal aliens who came under a nonimmigrant visa (such as Rehaif's student visa), though with a few exceptions (for certain foreign officials, for visitors "admitted to the United States for lawful hunting or sporting purposes," and for visitors "in possession of a hunting license or permit"). I suspect that, even if Rehaif didn't know that he was illegally present, he must have known that he was here on a student visa. (Even if his mens rea is relevant, it doesn't matter whether he knew that gun possession by people on such visas is forbidden; the only question is whether he knew his visa status.) So I think that if he had been prosecuted under the nonimmigrant alien ban (§ 922(g)(5)(B)) he would have been convicted even with a mens rea requirement. But the government charged him under the illegal alien ban (§ 922(g)(5)(A)), so that's all that matters for purposes of the case that is now before the Court.

UPDATE: Thanks to reader TwelveInchPianist, I now see that the preceding paragraph was likely wrong, at least given U.S. v. Elrawy (5th Cir. 2006); even though § 922(g)(5)(B) speaks of whether a defendant "has been" admitted under a nonimmigrant visa (which Rehaif had been), it has been read as requiring that the defendant still remain lawfully present as well:

Because Elrawy "has been admitted … under a nonimmigrant visa" in 1994, he could conceivably fall within the ambit of § 922(g)(5)(B) notwithstanding the fact that such visa had expired before he possessed a firearm. But, as his attorney argued at trial, under this interpretation of the statute even a non-immigrant who became a lawful permanent alien and has not left the United States since his initial admittance under a non-immigrant visa could be prosecuted, because he is an alien who has been admitted under a non-immigrant visa. That result would be absurd.

Therefore, it is implicit that an event that changes the alien's legal non-immigrant status—either from that of lawful non-immigrant to lawful immigrant (permanent resident) or from lawful non-immigrant to unlawful immigrant—renders this provision unavailable as to him. This is especially so given that an unlawful immigrant is already covered by § 922(g)(5)(A).

That is to say, the structure of the statute supports the position Elrawy took in the district court in moving for judgment of acquittal on count one. Aliens "illegally or unlawfully" in the United States are prohibited from possessing firearms under § 922(g)(5)(A), but aliens admitted on nonimmigrant visas (and hence not illegally or unlawfully in the United States) are prohibited from possessing firearms under § 922(g)(5)(B), with certain exceptions.

Because "'[s]pecific words within a statute … may not be read in isolation of the remainder of that section or the entire statutory scheme,'" only aliens who were admitted to the United States on a non-immigrant visa and maintain lawful "non-immigrant" status can be prosecuted under § 922(g)(5)(B). Aliens no longer in lawful non-immigrant status (1) are not to be prosecuted if they purchased the gun after they acquired lawful immigrant status and (2) can be prosecuted under § 922(g)(5)(A) if they purchased the gun after they acquired unlawful status.

I much appreciate the correction, and the enlightenment!

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  1. “So I think that if he had been prosecuted under the non-immigrant alien ban (922(g)(5)(B)) he would have been convicted even with a mens rea requirement. But the government charged him under the illegal alien ban (922(g)(5)(A))”

    They may be able to convict under (A) and show mens rea for (B).

    (B) is a terrible law. Most people don’t know about it, and visitors can inadvertently commit felonies by renting or borrowing guns. If you innocently take a foreign friend or relative shooting, you have made him a felon.

    1. At least in CA5, you can’t be convicted under the nonimmigrant visa prong if your status has expired and you are here illegally. As they point out, that interpretation would allow even permanent residents or citizens originally admitted on nonimmigrant visas to be prosecuted.

      1. Aha! Sorry I missed that when first looking into this, and thanks very much for the correction, which is reflected in a newly added UPDATE.

        1. lol sorry you pollute your copy with a semi-obscene moniker. 🙂

    2. I’m stunned that a federal prosecutor actually thought it was a worthwhile use of resources to pursue a felony case, under an obscure statute, and ultimately imprison, some dude for going to a gun range. Deport him for overstaying his visa, sure. But, holy hell, if the DOJ and Federal Bureau of Prisons have the resources and spare time to pursue this trivia, reduce their budgets and staffing by 25%.

  2. As a member of the Circuit Court, why was Judge Gorsuch bound by precedent while on panel, but not bound by precedent when the case was heard en banc?

    1. Because panels are bound by circuit precedent, but en banc courts are not.

      1. Ha ha, thank you, so I gather. But why would that be true? I wasn’t making a rhetorical point, that seems really strange to me. If the circuit court of appeals is hearing a case en banc, why wouldn’t Supreme Court precedent still be in force? They are still a lower court.

        1. Perhaps it was a circuit court precedent, not a Supreme Court precedent.

          1. Yup. When a circuit court panel rules on an issue of first impression, they create precedent for the circuit, that has to be followed by other panels unless and until overturned by the court sitting en-banc (or by SCOTUS). In the panel, Gorsuch was bound by United States v. Capps (10th Cir. 1996), which he was free to overturn when the court was sitting en banc.

        2. I assume it’s Circuit Court precedent, not Supreme Court precedent. When one panel of Circuit Court Judges make a ruling, it’s binding on all other panels but can be overruled en banc. Therefore, it’s not binding en banc when it is binding on a panel.

          1. Yes, stupid me, thanks all. I missed the “(10th Cir. 1996)” and assumed Capps was a Supreme Court decision.

  3. Wow! Years ago I took a business visitor from China pistol shooting. Did I unknowingly guide him to commit a felony?

    1. Abdul: I don’t mean to tread on your toe here (especially being a Russian myself), but I think you yourself were also committing a felony, assuming you knew he was just a visitor: You were aiding and abetting his felonious gun possession, and you were conspiring with him to have him possess a gun.

      1. This practice is very common but does appear to be technically illegal.

        Visitors from nations with strict gun laws flock to Waikiki shooting range…..r-tourists

        Another BS law.

      2. Add me to the list, I took one of my wife’s relatives from japan to the shooting range a few years back to shoot my .22 rifle.

        1. That might be fine, if they were here under the Visa Waiver Program, so they didn’t have any visa (nonimmigrant or otherwise) — Japanese citizens can get it under that, but Chinese ones can’t. I’ll have a post up about that, soon.

      3. Eugene,

        I see you are familiar with the lyrics and no doubt the history of my favorite song.

    2. Some prosecutor thought it was a good use of resources to prosecute some kids from Saudi Arabia for renting a gun at a gun range

      1. Conservatives might wish to shelve ‘good use of resources’ arguments while the President is holding his breath in a ‘build that wall’ tantrum.

        1. The wall is a terrible use of resources.

          1. Not if it gets Trumps enough votes to win.

      2. What a bullshit prosecution. And shame on the gun range owner for ratting these guys out to the feds when he saw them videotaping parts of their time there. God forbid that anyone should take photos or video of their fun time at the range!

        Poway Weapons and Gear gun range:

        Slogan: We tell on you to the feds if you have too much fun!

        1. What happened to ‘people become illegals when they break our laws?’

          1. That’s they type of rhetoric employed by authoritarians and extremists, on either side.

  4. I’m having difficulty parsing:

    “There can be fewer graver injustices in a society governed by the rule of law than imprisoning a man without requiring proof of his guilt under the written laws of the land.”

  5. I’m having difficulty parsing:

    “There can be fewer graver injustices in a society governed by the rule of law than imprisoning a man without requiring proof of his guilt under the written laws of the land.”

    1. Apparently the judges in this case had a little trouble with that as well.

  6. Re. charging under the nonimmigrant alien prong, I could see an argument that an expired visa no longer provides whatever benefits attached to the originally lawful status and so that route would have been a non-starter.

    1. Yeah, Prof. V’s comment is a little unclear to me. ISTM that if the government thinks he’s here illegally, they couldn’t prosecute him under the non-immigrant visa prong, but his knowledge that he is here on a non-immigrant visa could be used to satisfy mens rea for the illegal alien prong.

  7. Hi Eugene:

    Re: So I think that if he had been prosecuted under the nonimmigrant alien ban (922(g)(5)(B)) he would have been convicted even with a mens rea requirement.

    A very long time ago, I was a gun owner on a non-immigrant visa and the non-immigrant alien ban was passed in 1995. I read the text of the law and it does not apply to anyone who has a valid hunting license or permit. So I made sure to obtain one and keep it valid until I received permanent residence.

    In this particular case, I think that the government (or the defendant?) would have to prove that the defendant was not in possession of a valid hunting license.

  8. It always fascinates me that the FBI will go after people like Mr. Rehaif, who technically might have violated the law but had no bad intent, yet convicted violent felons are caught with firearms every day in places like D.C., and never get prosecuted under 18 USC 922 (g).

    1. Trying to prevent ex-felons that are Americans from keeping and bearing Arms, is unconstitutional.

      There are not “ex-felon” exceptions to the 2A.

      1. Would ex-felons be a good fit as a member of a well-regulated militia?

        I mean, aside from a Dirty Dozen type situation.

    2. What’s your basis for this statement? The US government prosecutes thousands felons for possessing firearms (and ammunition, and body armor) every yea, and is doing so at historically high levels. Not only do these cases outnumber all other prosecutions of prohibited persons for weapons possession: they account for 75% of federal weapons cases, period.

  9. 2nd Amendment: 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.

    All gun control laws are unconstitutional.

    With that being said, if the question is that the US Constitution has some provisions that apply and some that don’t to non-Americans, inside the USA because to get all the benefits of the Constitution you must be subject to the Constitution, then one could argue that the 2nd Amendment does not protect illegal immigrants.

    This is the problem with some Americans being okay with illegal immigrants breaking US law. A case like this will skew gun rights against Americans about ex-felonies rather than solely discussing gun right protections for illegal immigrants.

    1. “The right of the people to keep and bear arms…”

      Just as fetuses aren’t persons, so illegal aliens aren’t people.

      The Supreme Court, and the left in particular, has spent much ink on the idea that it’s wrong to give those outside the definitions of the categories rights the categories themselves don’t assign them.

      1. I don’t see any plausible argument that some living human beings aren’t people. The last Supreme Court case I recall to interpret “the people” as something other than a group of persons was Dred Scott. This applies equally to the Fourth Amendment as the Second Amendment. When the Constitution wants to refer to the rights of citizens, they’ll specify “citizen” like they do in the Privileges or Immunities Clause of the 14th Amendment and the Privileges and Immunites Clause of Article IV of the Constitution.

        Now what “the right” is can be a bit harder to parse out. Just like “the right” to free speech recognizes that some speech is not included in that right, it’s possible “the right” to keep and bear arms isn’t unlimited either.

        1. “The last Supreme Court case I recall to interpret “the people” as something other than a group of persons was Dred Scott..”

          How about US v. Verdugo-Urquidez?

  10. “? 922(g), besides banning gun possesion by illegal aliens, also bans gun possession by legal aliens who came under a nonimmigrant visa”

    This one is tricky (since he was in fact illegally here), but also constitutionally suspect. I thought I recalled this provision being struck in a few courts.

    1. There have been some cases questioning the legality of bans gun possession by lawful permanent residents. I’m not aware of any authority questioning the legality of bans on non-immigrant foreign citizens.

  11. Also, I was a little puzzled that “receive” included a rental under 922(g). I thought one had to take the gun off premised for this section.

  12. Shouldn’t they also prove that knowing he can’t own a gun is the same as knowing he can’t rent one?

    Are gun rentals in a confined location really a threat to public safety?

    1. Actually I thought the law specifically exempted temporary rentals for lawful sporting purposes.

      1. Not quite. The exception applies to an alien who is “admitted to the United States for lawful hunting or sporting purposes or is in possession of a hunting license or permit lawfully issued in the United States”. 18 USC 922(y)(2)(A). A tourist who happens to decide to go to a gun range doesn’t qualify.

    2. Are gun rentals in a confined location really a threat to public safety?

      To answer your question “yes”.

      As an avid marksman I have seen way too many posts on shooting sites about folks renting (or bringing guns) to ranges and ignoring rules about shooting only in your lane. It is common in some places for arguments to arise over one shooter hitting the target in another lane.

      Sad to say incidents like what happened to Chris Kyle also occur.

  13. The constitution uses the term “the accused” in outlining the rights of criminal defendants. In doing so, it communicates that these rights apply regardless of whether the accused possesses a status conveying other rights such as life, liberty, property, or keeping and bearing arms. The government can expel; under some circumstances it can kill. But it cannot claim to be punishing for crime without according basic rights including a trial.

    1. That seems like a correct statement of the law. What does it have to do with this case?

  14. It is rather a lack of actus reus (in regard to the firearms). Operating rented firearms at a shooting range should not be considered a “possession”. It is temporary, conditional, subject to supervision and limited to the venue. An analogical exception applies to underage shooters: the law prohibits them from possessing firearms, but range visits under supervision are excepted.

    1. …and, because such an exception exists for kids, the defendant could reasonably believe it also applied to other categories of normally restricted persons. Hence the lack of mens rea.

    2. Example in state law:
      Utah Code 76-10-512. Target concessions, shooting ranges, competitions, and hunting excepted from prohibitions.

    3. An analogical exception applies to underage shooters

      There is no such exception under federal law, because there is no minimum age to possess a firearm under federal law. (There is a minimum age to purchase one, but not to possess it.)

    4. I can go to a shooting range and rent and shoot an NFA firearm (eg, a firearm with a silencer or a machinegun) and NOT be arrested for unregistered possession. Although I am renting the use of the gun at the range, I am not in possession of the weapon: the range retains legal possession of their registered NFA firearm.

    5. I tend to agree that temporary possession at a shooting range should often be much more lightly regulated than possession outside the range (even assuming that such possession outside is properly regulated).

      But this particular statute covers “possess[ing]” and “receiv[ing]” guns generally; and those terms do literally cover temporary and supervised possession, both in their ordinary English meanings and their legal meanings. Whatever should be the law, the current legal rule does seem to cover possession at shooting ranges.

      As to underage shooters, federal law expressly doesn’t ban mere possession by them, whether at the range or elsewhere.

      1. The can be no regulation of Arms, as per the 2nd Amendment.

        As typical with Volokh, the Constitution is something to fleece for financial gain rather than follow.

      2. Then what about the excellent Naaman Brown’s example involving NFA firearms?

        If renting them is equivalent to “possession”, then anyone who rents them at shooting ranges without registering with BATF should be prosecuted (because without such registration we all are “restricted persons”). Such prosecutions don’t happen, therefore we have a commonly recognized exception of the same kind that should apply to the defendant in the discussed case: patrons at legally operating shooting ranges are excepted from prohibitions.

        1. It has become common for those wanting to own Class 3 weapons to form a trust. That way the trust owns the weapon and can name those in the trust. While this is a somewhat little known field of law there are folks who specialize in setting up these trusts.

          One advantage is if someone owns a Class 3 weapon and sets up a trust when they die their kids (whoever) inherits the Class 3 weapon if the kids are named in the trust.

          Not sure how this works for a range but I doubt Class three weapons there are owned by individuals; rather by a company and maybe a trust.

          This is the first link that came up in google; but certainly not the only one. Quite frankly everyone I know who owns a Class 3 weapon has it in a trust.

  15. Ignorance of the law is no excuse except for illegal aliens. Then it is.

    Only idiots could possibly believe he did not know he was illegally here.

  16. What is the world coming to, a law professor saying “Thanks to reader TwelveInchPianist.”


  17. I understand that this is simply a statutory interpretation case and SCOTUS is just reviewing the question from the cert petition…buuuuttttttttt, on a different note, why doesn’t the Second Amendment apply to undocumented immigrants (in other words, why didn’t the public defender argue for his second amendment rights)? I thought that the Due Process Clause applies to undocumented immigrants just as it does to others, with limited exceptions based on circumstances, not identity as an UI, such as at ports/airports before passing through customs/immigration & the border search exception to 4th Amendment (Note: the right to vote in federal elections since Sect. 2 of 14th Amendment refers to right of male citizens to vote (later extended to women), so that’s not implicated by 5th/14th Due Process Clause rights of UIs).

    1. It makes more sense that all protections of the Constitution apply to all persons inside the territory of the USA.

      This makes border security and Americans deciding who is here even more important.

  18. To be more precise on this point, the fact that the constitution treats “the accused” as a distinct category enjoying rights in criminal trials, illustrates that in general they should be treated presumptively the same as other criminal defendants. There is therefore no reason why the common-law presumption of a scienter requirement for the elements rendering otherwise non-criminal conduct criminal, shouldn’t apply to crimes where that element is illegal alien status. For this reason, a reading that includes this scienter requirement is the best reading of the statute. I would stop there, at the statutory construction phase.

    This is so even though they don’t have the same constitutional rights in other matters, like deportation proceedings, and don’t have a constitutional right to possess again.

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