Illegal immigrants do not have the right to bear arms under federal law. A federal statute, 18 U.S.C. § 922(g)(5), makes it a felony for any person “illegally or unlawfully in the United States” to possess a firearm or ammunition, punishable by up to 15 years in prison.1Office of the Law Revision Counsel. 18 USC 922 – Unlawful Acts Whether the Second Amendment reaches undocumented immigrants is still contested in the courts, but every federal appeals court to rule on the question has upheld the ban.
Who the Ban Covers
The statute reaches anyone without lawful immigration status. That includes people who entered without authorization and people who entered legally but overstayed a visa. A clean criminal record does not matter. Years of residence do not matter. Intent to use the firearm only for self-defense does not matter. If you lack lawful status, federal law treats you as a prohibited person.
The prohibition is broader than complete firearms. Federal law defines “ammunition” to include loose components — brass casings, primers, bullets, and propellant powder.2Office of the Law Revision Counsel. 18 USC 921 – Definitions A box of bullets or a bag of spent brass falls within the ban.
Possession itself is defined broadly. Actual possession means the firearm is on your person or within reach. Constructive possession applies when you knowingly have the ability and intent to control a firearm you are not touching — a gun in a nightstand, a closet, or a glove compartment can qualify. In a mixed-status household, prosecutors can argue constructive possession when a firearm is accessible to a prohibited person who knows it is there. Storing firearms in a locked safe that only the lawful owner can access, without sharing the combination or key, is the safer arrangement.
The Second Amendment Question
The Second Amendment protects “the right of the people to keep and bear Arms.”3Cornell Law Institute. Second Amendment The constitutional debate turns on who counts as “the people.” The Supreme Court has not directly resolved that question for undocumented immigrants, but two of its decisions frame how lower courts approach it.
In District of Columbia v. Heller, the Court recognized an individual right to possess a firearm for self-defense in the home, describing it as a right of “law-abiding, responsible citizens to use arms in defense of hearth and home.”4Cornell Law School. District of Columbia v. Heller – Opinion That “citizens” phrasing did not settle the non-citizen question, but it gave courts room to read the right narrowly.5Cornell Law School. District of Columbia v. Heller
The other reference point is United States v. Verdugo-Urquidez, a Fourth Amendment case in which the Court said “the people” refers to those who are “part of a national community” or who have “developed sufficient connections with this country to be considered part of that community.”6Justia U.S. Supreme Court Center. United States v. Verdugo-Urquidez, 494 U.S. 259 (1990) Federal courts applying that framework to the Second Amendment have generally concluded that undocumented immigrants lack the community ties needed to qualify.
Recent Challenges to the Ban
The ban has been tested repeatedly since the Supreme Court’s 2022 ruling in New York State Rifle & Pistol Assn. v. Bruen, which requires gun regulations to be consistent with the nation’s historical tradition of firearms regulation.
In 2024, a federal district judge in Illinois ruled in United States v. Carbajal-Flores that § 922(g)(5) was unconstitutional as applied to an undocumented immigrant with no criminal record who claimed he possessed a handgun for self-defense. The ruling was narrow and case-specific, though it was widely mischaracterized as recognizing a broad right for undocumented immigrants to own guns. It did not survive appeal. In July 2025, the Seventh Circuit reversed, holding the dismissal of the indictment was improper.7United States Court of Appeals for the Seventh Circuit. United States v. Carbajal-Flores, No. 24-1534
A federal district court in Texas struck down the ban entirely in United States v. Sing-Ledezma, also in 2024. That case is on appeal to the Fifth Circuit. No federal appeals court has invalidated § 922(g)(5). The federal ban remains enforceable nationwide, and anyone relying on a district court opinion to justify possessing a firearm while unlawfully present is taking a serious legal risk.
Criminal Penalties
A violation of § 922(g) is a federal felony carrying up to 15 years in prison and a fine. The 15-year maximum was set by the Bipartisan Safer Communities Act in 2022, raised from a prior 10-year cap. Defendants with three or more prior convictions for violent felonies or serious drug offenses face a mandatory minimum of 15 years without parole.8Office of the Law Revision Counsel. 18 USC 924 – Penalties
The Supreme Court’s 2019 decision in Rehaif v. United States added a proof requirement: the government must show the defendant knew they possessed a firearm and knew they belonged to a prohibited category.9Supreme Court of the United States. Rehaif v. United States, No. 17-9560 For an undocumented defendant, prosecutors must prove the person knew they lacked lawful status. Someone who genuinely believed a visa was still valid or an application had been approved may have a defense, though proving that belief is difficult.
Immigration Consequences
Criminal exposure is only part of the picture. A conviction under § 922(g)(5) is listed as an “aggravated felony” in the Immigration and Nationality Act.10Office of the Law Revision Counsel. 8 USC 1101 – Definitions That designation applies regardless of the sentence imposed. A person convicted of an aggravated felony is deportable, barred from nearly every form of relief that could prevent removal (including asylum), and permanently inadmissible after departure.11U.S. Citizenship and Immigration Services. Chapter 4 – Permanent Bars to Good Moral Character Reentry after removal requires a special waiver from the Department of Homeland Security, which is rarely granted. For anyone hoping to eventually adjust immigration status, a firearms conviction effectively closes that door.
DACA, TPS, and Other In-Between Statuses
Recipients of Deferred Action for Childhood Arrivals (DACA) sit in a confusing position. DACA provides protection from deportation and work authorization, but it does not grant lawful immigration status in the traditional sense. The ATF defines an alien “illegally or unlawfully in the United States” as someone “not in valid immigrant, nonimmigrant or parole status.” Because DACA is none of those things, DACA recipients are prohibited from possessing firearms under federal law.12U.S. Citizenship and Immigration Services. Termination of Consideration of DACA Based on Unlawful Attempts to Purchase a Firearm
A 2025 USCIS policy memorandum goes further, directing that DACA recipients who attempt to purchase a firearm may have their deferred action terminated.12U.S. Citizenship and Immigration Services. Termination of Consideration of DACA Based on Unlawful Attempts to Purchase a Firearm Trying to buy a gun can cost the person their DACA protection.
Temporary Protected Status (TPS) grants a form of lawful status, but if that status lapses or documentation expires, the person may fall back within the ATF’s definition of prohibited. Anyone in a temporary or quasi-legal status should assume the federal ban applies unless an immigration attorney confirms otherwise.
Lawful permanent residents — green card holders — are not covered by the § 922(g)(5) prohibition and can purchase and possess firearms on the same terms as U.S. citizens after clearing the standard NICS background check. Nonimmigrant visa holders (tourists, students, temporary workers) are generally prohibited, with narrow exceptions for holders of a valid hunting license, accredited foreign officials, designated distinguished foreign visitors, and foreign law enforcement on official business.1Office of the Law Revision Counsel. 18 USC 922 – Unlawful Acts
State Law Cannot Override the Federal Ban
No state can override the federal prohibition. The Supremacy Clause makes federal law the “supreme Law of the Land,” binding on state judges regardless of what state law says.13Legal Information Institute. Article VI, U.S. Constitution Federal agents and prosecutors can bring charges regardless of state or local policy. A state-issued concealed carry permit, where available, does not protect someone who is federally prohibited from possessing a firearm in the first place.