9th Circuit Court of Appeals Oral Argument wrapping Illegal Aliens, Silencers, Domestic Violence, and Lying with a Second Amendment bow

United States of America v. DeBorba 24-3304

On Monday, February 24, 2025, the 9th Circuit Court of Appeals notified the attorneys that this case (United States of America v. DeBorba 24-3304) is being considered for an upcoming oral argument calendar in Seattle during June or July.

When I was a youth, bad cases sometimes resulted in judges making good decisions. Those days are long gone. And in those few good cases, the United States Supreme Court has punched so many holes in them that they are unrecognizable.

This summer, some lucky three-judge panel will have the opportunity to make good law with a bad case or make bad law with a bad case. Statistically, given that there are maybe eight out of twenty-nine active judges on the 9th Circuit Court of Appeals who might be characterized as “pro-gun,” when we include the number of anti-gun district court judges, senior status judges, and visiting judges who can sit on a three-judge panel, the probability of a good Second Amendment decision is pretty low.

Should a three-judge panel issue a friendly decision, the full court will vote to vacate the decision, rehear the case before a limited eleven-judge en banc panel, and then publish a bad decision. If the limited en banc panel opinion issues a good decision, then it too will be vacated and reheard before the Full Court, where an unfriendly to the Second Amendment decision is guaranteed. Welcome to the 9th Circuit Court of Appeals.

Congress and the US Supreme Court can fix the problem we have with Federal judges who are hostile to the Second Amendment, but won’t.

Mr. DeBorba’s Federal public defender raises six issues on appeal:

1. Whether 18 U.S.C. § 922(g)(5)’s indefinite disarmament of all undocumented immigrants and people with non-immigrant visas is ever “relevantly similar” to historic laws providing for forfeiture of a firearm if it was used to commit a hunting violation or penalizing some serious felonies with death, such that the law is consistent with the Second Amendment. 

2. Whether, under the Second Amendment, the same historical laws justify § 922(g)(5)’s application to Mr. DeBorba, who committed no crime in overstaying a visitor visa and has lived in the United States for over 20 years contributing to his community and supporting his family.

3. Whether 18 U.S.C. § 922(g)(8) can, consistent with the Second Amendment, be applied beyond the facts of Rahimi to cases where a protection order did not issue due to misuse of guns, no facts are known about the evidentiary proceedings underlying the order, or the order contains no finding that the individual represents a credible threat to the safety of another person. 

4. Whether false statements about citizenship and immigration status are material to a gun purchase under 18 U.S.C. § 922(a)(6) and made to an entity with a right or adequate reason to inquire under § 911 when the Second Amendment does not allow a person’s right to bear arms to be restricted based on citizenship or immigration status.

5. Whether silencers are protected by the Second Amendment as arms or accessories necessary to effectively use arms and whether the National Firearms Act (NFA)’s system of onerous regulations, disproportionate taxation, and prison penalties is justified under the Second Amendment by historic colonial trade limits, taxes, or inspection requirements.

6. Whether a facial vagueness challenge can be considered when a statute risks chilling protected Second Amendment activity as it could for First Amendment activity and whether the NFA’s definition of silencer, which includes any item or combination of parts for “diminishing the report” of a firearm in any way, § 921(a)(25), is unconstitutionally vague. 

The Biden administration put forth its own version of the issues in its Answering brief.  And don't forget, it is now President Trump's DOJ who is responsible for what the government argues next in this case, and in every Federal case, both criminal and civil.

I. As an unlawfully present alien, is DeBorba part of “the people” to whom the Second Amendment applies? If he is, do Counts 1, 2, 3, or 7 violate the Second Amendment? 

A. Counts 1 through 3 charged DeBorba with possessing firearms and ammunition as an unlawfully present alien. Does 18 U.S.C. § 922(g)(5)(A) violate the Second Amendment on its face or as applied to him?

B. Counts 1 and 2 also charged DeBorba with possessing firearms and ammunition while under domestic violence restraining orders. Does 18 U.S.C. § 922(g)(8) violate the Second Amendment as applied to him?

C. Count 7 charged DeBorba with possessing an unregistered silencer. Does 26 U.S.C. § 5861(d) facially violate the Second Amendment?

II.  Counts 4 through 6 charged DeBorba with falsely claiming to be a U.S. citizen when he bought two guns and applied for a concealed-pistol license, in violation of 18 U.S.C. §§ 922(a)(6) and 911. Were his lies “material”?

III.  On Count 7, is the definition of “silencer” void for vagueness?	

The optional Reply Brief is due by March 17, 2025.

Here are the CourtListener docket links where many of the relevant files can be read for free: Court of Appeals District Court