I. Introduction

In United States v. Perez, the Second Circuit (Robinson, Peréz, and Nathan) affirmed the conviction of Steven Perez, a.k.a. “Lucha El,”[1] of one count of interstate transport of firearms in violation of 18 U.S.C. § 922(a)(3) and one count of conspiracy to transport and receive firearms from outside his state of residence, in violation of 18 U.S.C. § 371.

In so doing, the Court rejected Lucha El’s constitutional challenge to § 922(a)(3) based on New York State Rifle & Pistol Assoc., Inc. v. Bruen, 597 U.S. 1 (2022), stressing that § 922(a)(3) was presumptively lawful because it did not meaningfully constrain his Second Amendment rights to keep or bear arms. Moreover, the Court found that even if § 922(a)(3) did affect such constraints, because it was consistent with several founding-era laws that regulated the movement of arms across borders and disarmed dangerous individuals, it was permitted by the Second Amendment. In short, § 922(a)(3)’s prohibition on the interstate transportation of firearms remained constitutional.

II. Background

Lucha El, a resident of New York state, was twice arrested for the unlawful possession of firearms. In both instances, officers recovered weapons that had been purchased in South Carolina by Keith Vereen, whom Lucha El used as a straw purchaser to acquire the firearms.

Because the firearms originated in South Carolina, Lucha El was charged with interstate transportation of firearms in violation of 18 U.S.C. § 922(a)(3), which prohibits an individual from transporting or receiving into their state of residence any firearm purchased or otherwise obtained out of state, without the requisite federal license. Lucha El moved to dismiss these charges, arguing that § 922(a)(3) violated the Second Amendment as applied by New York State Rifle & Pistol Ass’n v. Bruen, 597 U.S. 1 (2022). The district court then denied his motion and jury found him guilty of violating § 922(a)(3). Lucha El’s appeal followed.

III. Opinion

The Second Circuit responded to the sole issue Lucha El raised on appeal—whether his convictions were unconstitutional because § 992(a)(3) violates the Second Amendment post-Bruen—with an emphatic “no,” finding instead that Section 992(a)(3) remains a lawful regulation concerning the commercial sale of firearms.

In so holding, the Court provided a high-level overview of Second Amendment jurisprudence, including Bruen and post-Bruen case law, under which the question of whether a firearms regulation violates the Second Amendment involves a two-pronged analysis. Namely, courts must ask whether (i) the Second Amendment’s text applies to a challenged regulation, and (ii) if so, whether the regulation is consistent with our country’s “historical tradition of firearm regulation.”

As to the first prong, the panel explained that the inquiry focuses on whether the Second Amendment’s protections concerning the right to “keep” and “bear” arms, inclusive of the ability to acquire and maintain arms, are implicated by the regulation. If that prong is satisfied, i.e., if a regulation concerns the right to “keep” or “bear” arms, then it is only lawful if it is consistent with the nation’s historical tradition of firearm regulations. If, on the other hand, it is not consistent with that history, then the firearm regulation violates the Second Amendment and is unconstitutional.

Applying these standards, the Second Circuit first noted that § 922(a)(3) does not implicate the Second Amendment’s right to keep and bear arms because it “only minimally affects the ability to acquire a firearm,” as it “does nothing to keep someone from purchasing a firearm in her home state, which is presumptively the most convenient place to buy anything,” nor does it “bar purchases from an out-of-state supplier if the gun is first transferred to a licensed gun dealer in the purchaser’s home state.” In other words, § 922(a)(3) leaves individuals with many alternatives by which they can acquire firearms and at most simply prohibits the transportation of certain firearms across state lines. The panel explained that a “range of regulations on firearms retailers” had been upheld after Bruen, including in one case holding that gun buyers did not have a right to a gun store in a particular location or a right to travel no more than short distances to the most convenient gun store.

In reaching this conclusion, the panel observed that Lucha El himself did not argue that he would have been unable to lawfully acquire the handguns underlying his convictions in New York, or that he would have been unable to obtain a license to transport firearms across state lines. Instead, the only limit that § 922(a)(3) placed on his conduct was that he could not secretly buy guns through an anonymous straw purchaser in another state, a right which the Second Amendment does not confer. In other words, the Second Amendment did not encompass the conduct prohibited by § 922(a)(3) and Lucha El’s constitutional challenge failed at the threshold of the Bruen analysis. The Court held that the statute here—already upheld as constitutional by the Second Circuit after District of Columbia v. Heller, 554 U.S. 570 (2008) but before Bruen—minimally constrained only an ancillary right. See United States v. Decastro, 682 F.3d 160, 163–69 (2d Cir. 2012).

The panel further observed that even if Lucha El could somehow satisfy Bruen’s first prong, the government nevertheless satisfied its burden of showing that § 922(a)(3) is consistent with the nation’s historical tradition of firearm regulation. In particular, the Circuit noted the existence of colonial and founding-era laws regulating the movement of firearms and gunpowder between colonies and across borders, as well as statutes disarming those deemed “dangerous.” All of those historical examples satisfied Bruen’s requirements, as those laws demonstrated “a historical tradition of restricting arms transactions across borders,” which was identical to the burden posed by § 922(a)(3). In finding these historical analogues sufficient, the Circuit stressed that there need not be a “significant number” of such analogues, so long as there is no “countervailing contemporaneous historical evidence,” which Lucha El failed to provide.

In sum, the panel held that § 922(a)(3) is presumptively lawful regulation that targets commercial firearms sales without materially burdening the ability of law-abiding, responsible citizens to keep and bear arms, which was applied to Lucha El in a manner consistent with historical tradition. In such circumstances, his conviction plainly did not violate the Second Amendment.

IV. Commentary

The Circuit’s decision in Perez shuts the door on defendants who may have been exploring constitutional challenges to § 922(a)(3) prosecutions in favor of upholding existing gun regulations despite the novel Second Amendment analysis required by Bruen. The Court did this without employing the means-end scrutiny that the Supreme Court rejected in Bruen, as it concluded that Decastro did not use such an analysis but instead applied what turned out to be the first prong in Bruen. Decastro, in other words, survived Bruen and remained good law.

While some might be surprised by the Circuit’s continued ability to work within the confines of Bruen and allow for common sense gun regulations to remain good law, the Supreme Court denied certiorari in Perez, suggesting that the Circuit’s application of Bruen is faithful to both the spirit and the letter of the law and that Bruen itself was not as sweeping a sea change in firearms regulation as originally feared. As demonstrated in the Court’s recent decision, United States v. Gomez, involving a challenge to 18 U.S.C. § 922(k), Bruen did not repeal all federal firearms statutes, and we can continue to expect to see courts taking an individualized approach to these statutes when challenged by defendants.