On September 1, 2026, the Third Circuit published three precedential criminal opinions. Two are Second Amendment cases decided under the Bruen framework. The third is a Fourth Amendment case about when a warrantless entry into a home costs the government its evidence.
The defendants lost all three. But two of the panels split on how to get there, and those splits are most likely to matter in the next case.
A Quick Word on Bruen
Both gun cases run through the two-step test from New York State Rifle & Pistol Ass’n v. Bruen, 597 U.S. 1 (2022). Step one asks whether the Second Amendment’s text covers the person and the conduct: is this someone among “the people,” and is this an “arm” being kept or borne? If yes, the conduct is presumptively protected, and at step two the government must show the regulation fits the nation’s historical tradition of firearm regulation. It doesn’t need a historical twin, just an analogue that is “relevantly similar” in why and how it burdens the right. United States v. Rahimi, 602 U.S. 680 (2024).
Where an argument lands in that framework is the fight in both cases.
United States v. Aleman-Lozano: Nonimmigrant Visa Holders Can Be Disarmed
United States v. Aleman-Lozano, No. 25-3012, ___ F.4th ___ (3d Cir. Sept. 1, 2026) (Shwartz, J., joined by McKee, J.; Phipps, J., concurring in the judgment).
Diego Aleman-Lozano, a citizen of El Salvador, entered the country unlawfully but was later granted a nonimmigrant visa with work authorization. He lived with his family, went to school, and worked in Washington, D.C. A Pennsylvania trooper stopped him for a traffic violation, saw a rifle cartridge on the passenger seat, got a warrant, and found a pistol with no serial number and a loaded sixteen-round magazine.
He was charged under 18 U.S.C. § 922(g)(5)(B), which bars nonimmigrant visa holders from possessing firearms. He brought a facial challenge, meaning an argument that the statute is unconstitutional in every application rather than just his, entered a conditional plea, and appealed.
The Majority Skips Step One
The step-one question is whether nonimmigrant visa holders are among “the people.” The Supreme Court has never settled what that phrase means. It has said “citizens,” “law-abiding citizens,” “all Americans,” “all members of the political community,” and, borrowing from a Fourth Amendment case, those who are part of the “national community” or have “developed sufficient connection with this country.” In the parallel context of unlawfully present noncitizens, the Fourth, Fifth, and Eighth Circuits use the “political community” reading and exclude them; the Sixth and Seventh use the “national community” reading and include at least some.
Judge Shwartz declined to pick. Any definition would spill into the First, Fourth, and Ninth Amendments, which use the same phrase; deciding wasn’t necessary; and one definition might not fit every visa category. So the court assumed without deciding that at least some noncitizens are among “the people” and went to step two.
There, the government’s analogue was the tradition of disarming people considered disloyal to the sovereign. The majority traced it from English common law, where aliens couldn’t own land and land ownership was tied to gun ownership, through colonial Georgia’s disarmament of Acadians who refused loyalty to the Crown, to the Revolutionary-era statutes (Pennsylvania’s Test Act among them) that disarmed anyone who wouldn’t swear allegiance to the new state.
The fit ran in both directions. Why: the old laws and § 922(g)(5)(B) both address people who haven’t affirmed allegiance to the sovereign. How: both disarm until the person takes the oath, then a loyalty oath, now the naturalization oath. Congress also built a path around the ban short of citizenship, an Attorney General waiver under § 922(y)(3).
One footnote deserves attention. Citing Wolford v. Lopez, 146 S. Ct. 2032 (2026), which rejected post-Civil War Black Codes as analogues, the majority declined to rely on colonial laws disarming Catholics, Native Americans, and enslaved people. It said it didn’t need them. Whether those laws can ever be used at step two is left open.
Judge Phipps Would Have Stopped at Step One
Judge Phipps concurred in the judgment only, and his objection was to the assumption. He called it “needless” and its breadth “staggering”: the majority assumed every nonimmigrant visa holder has full Second Amendment rights. His route was shorter. A facial challenge fails if the statute is valid in even one application. So it fails if even one class of nonimmigrant visa holder is outside “the people.” Judge Phipps picked the C-1 transit visa, a 29-day pass for foreign nationals traveling through the United States to somewhere else. A transit passenger hasn’t developed a “sufficient connection” with the country. That ends the facial challenge with no history required.
He also suggested, without deciding, that nonimmigrants as a class may fall outside “the people,” since they keep permanent residence abroad and can’t vote in federal elections or sit on federal juries.
United States v. Berger: Machine Guns Can Be Banned, Silencers Can Be Registered
United States v. Berger, No. 24-2125, ___ F.4th ___ (3d Cir. Sept. 1, 2026) (Bibas, J., joined by Restrepo, J.; Chung, J., not joining Part III).
Joseph Berger, a Navy veteran living with his father in Bethlehem, had more than five dozen guns, thirteen of them fully automatic AK-47 variants, plus a dozen silencers and parts to convert semi-automatics into machine guns. Agents found it all after intercepting a package of silencers from China. He pleaded guilty to possessing a machine gun under 18 U.S.C. § 922(o) and an unregistered silencer under the National Firearms Act, reserving his as-applied Second Amendment challenge.
The Third Circuit held machine guns unprotected ten years ago in United States v. One Palmetto State Armory PA-15 Machinegun Receiver/Frame, 822 F.3d 136 (3d Cir. 2016). The question was whether that survives Bruen. The panel waited for the en banc decision in Association of New Jersey Rifle & Pistol Clubs v. Attorney General, ___ F.4th ___, 2026 WL 2075513 (3d Cir. 2026) (en banc) (ANJRPC), which placed Heller‘s “common use” inquiry at step two.
Machine Guns
With that settled, the analysis was short. Machine guns are firearms, so they are “arms” at step one. At step two, the government met its burden because machine guns are not in common use for lawful purposes, which makes them “dangerous and unusual” under Heller. Judge Bibas built the point from the weapon itself. Automatic fire is inaccurate; the Army trains soldiers to use it only when precision doesn’t matter. The Thompson submachine gun was a flop for police and a success for bootleggers. Congress in 1968 called machine guns “gangster-type weapons” with no sporting or self-defense use. Between 1925 and 1934, at least 29 states banned them. The court was careful about that last point: the 1920s laws don’t establish a Founding-era tradition, but they show how fast the consensus formed.
The Sixth, Ninth, and Tenth Circuits have reached the same result. The panel was unanimous on this part.
Silencers, and a Split Over Why
Here the panel divided on method, not result.
Judge Bibas, for himself and Judge Restrepo, didn’t decide whether silencers are “arms.” Even if they are, the registration requirement doesn’t “infringe” the right, so the challenge fails at step one. The reasoning starts with Heller‘s statement that “conditions and qualifications on the commercial sale of arms” are presumptively lawful and Bruen‘s footnote 9 endorsing shall-issue licensing regimes with “narrow, objective, and definite standards.” The best way to read those passages, the majority said, is as a gloss on the word “infringe,” because neither Heller nor Bruen identified a historical tradition of permitting. Founding-era dictionaries and Blackstone’s distinction between “wanton and causeless” restraints and “due restrictions” support the same reading. Minimal, objective, generally applicable regulations on buying and selling arms are incidental burdens, not infringements. Silencer registration (an application, fingerprints, a photo, a $200 tax, a serial number) is that kind of hoop. The Fourth and Fifth Circuits have upheld the same requirement.
Judge Chung didn’t join. Her stated reason was procedural: the government never argued that registration doesn’t “infringe.” It argued history at step two. Before adopting a rule that a small enough burden on an “arm” doesn’t trigger the Second Amendment at all, she would want briefing from the parties and amici, because she sees “some tension” between that approach and Bruen‘s rejection of means-end scrutiny. If a court can excuse a regulation at step one by measuring how much it burdens the right, that resembles the balancing Bruen took off the table.
She concurred in the judgment on a different ground. Under Wolford, the Amendment reaches only laws that restrict the keeping or bearing of arms, and under ANJRPC, an instrument is an “arm” only if it is necessary for a gun to function as intended. A silencer is an accessory. So registering silencers restricts neither keeping nor bearing. The Ninth and Tenth Circuits agree; the Fifth has gone the other way.
United States v. Walker: The Wrong Apartment and the Exclusionary Rule
United States v. Walker, No. 25-2118, ___ F.4th ___ (3d Cir. Sept. 1, 2026) (Bibas, J., joined by Chung and Mascott, JJ.).
This one is unanimous, and it shows how much room the good-faith line of cases gives an officer who gets it wrong.
State police flagged a suspicious UPS package: heavily taped seams, next-day air, a return address matching an earlier drug shipment. A dog alerted, and a warrant produced six pounds of methamphetamine. To find the recipient, a county prosecutor applied for a GPS tracker order and a search warrant for the delivery address, Apartment 2. Trooper Montz’s affidavit asked for more. If the package went into a “secondary location,” he wanted to enter it, secure the package, and then apply for a warrant, a procedure called a hit-and-hold.
The judge issued the tracker order and the Apartment 2 warrant. Neither mentioned a hit-and-hold. But the tracker order said the application, including the affidavit, was “incorporated for all purposes.”
The box went to the porch. Davone Walker came out of Apartment 1, a different unit in the same house, and took it inside. After five hours, Montz ordered the hit-and-hold. Officers entered Apartment 1 without a warrant for it, secured the box, and applied for a second warrant describing the “pre approved hit and hold.” That search turned up five pounds of meth, a kilo of fentanyl, a thousand fentanyl pills, and cocaine.
The government conceded the entry wasn’t authorized. The district court found Montz’s belief that it was authorized unreasonable. The only question was whether the evidence gets suppressed anyway.
Mistakes Versus Misconduct
No, and the reason is the culpability threshold from Herring v. United States, 555 U.S. 135 (2009), and Davis v. United States, 564 U.S. 229 (2011). Exclusion deters future violations; it doesn’t remedy past ones. It applies only where police conduct is “deliberate, reckless, or grossly negligent,” or part of “recurring or systemic negligence.” Isolated negligence doesn’t qualify. The Third Circuit has applied that in both directions: suppressing in United States v. Vasquez-Algarin, 821 F.3d 467 (3d Cir. 2016), where officers entered a home without reliable information the target was there, and declining to suppress in United States v. Wright, 777 F.3d 635 (3d Cir. 2015).
Walker argued that Montz couldn’t have read the tracker order with even “scant care” and still believed it authorized entry into another apartment. He invoked expressio unius, the canon that listing one thing implies excluding others: the order authorized tracking, so it authorized only tracking.
Judge Bibas rejected that on two grounds. Montz did read the order, and the incorporation clause gave him reason to think his hit-and-hold request had been granted. The court pointed to United States v. Tracey, 597 F.3d 140 (3d Cir. 2010), where an officer’s belief that a warrant incorporated his affidavit was “understandable” even though the warrant didn’t say so; here the order did say so. And “[p]olice are not lawyers.” Officers aren’t held to canons of construction, and missing one isn’t gross negligence. The court also stressed what Montz didn’t do. He didn’t skip the warrant process, and he didn’t enter without reliable information the drugs were inside. He asked for hit-and-hold authority, believed he had it, and used it once.