Australian man Robert Swan in legal battle over 9mm handgun in US

An Australian man from NSW has been allegedly busted carrying a pistol in America. Now, he’s trying to use a new line of defence to get his case thrown out.

Exclusive: An Australian allegedly busted carrying a pistol in the United States is trying to avoid jail by claiming he has a constitutional right to bear arms – despite having lived in America illegally for a decade.

The United States Attorney’s Office has rubbished Robert Swan’s defence and alleged he was plotting to use the weapon to force his way into a hospital where his wife Melissa was in quarantine with Covid-19.

Mr Swan, originally from New South Wales, was allegedly caught in November last year with his wife’s Walther Creed 9mm semiautomatic handgun in York County, Pennsylvania.

He was charged with possessing a firearm as a prohibited person because he had been living in the US illegally since arriving on a tourist visa in 2012 – an offence that carries up to 10 years behind bars.

A Walter Creed 9mm semiautomatic gun. Source: impactguns.com

But Mr Swan is now fighting to have the case thrown out by claiming his conduct was “presumptively protected” by the US Constitution’s Second Amendment – which guarantees the “right of the people to keep and bear arms” – because of his “substantial connections to this country”.

His lawyer also argued a landmark Supreme Court decision from June, which controversially expanded the rights of Americans to carry firearms in public, meant gun laws had to be consistent with the original drafting of the Constitution.

“Laws categorising individuals as ‘aliens’, and criminalising their possession of firearms, which did not appear in the United States until the 20th century, were unknown to the generation that ratified the Second Amendment,” Assistant Federal Public Defender Thomas Thornton said.

US Attorney General Gerard Karam. Picture: Supplied

Mr Thornton accepted Mr Swan overstayed his tourist visa but argued he was “clearly among ‘the people’ the Second Amendment protects” as he was “fully immersed in our culture”.

But United States Attorney Gerard Karam rejected Mr Swan’s defence, arguing he had “not undertaken any societal obligations towards this country whatsoever”.

In court documents filed last month, Mr Karam said Mr Swan had “unlawfully overstayed” his visa and never worked, paid taxes or held a driver’s licence while living in the US.

He said Mr Swan lived in a house with his wife, two of their stepchildren, the children’s biological father and three adult friends who helped pay the bills.

“Where the defendant is not law-abiding, not responsible and not a citizen, his rights stop short at the right to bear arms,” Mr Karam said.

Mr Swan’s extended family in NSW said they had not heard from him since he moved to the US more than a decade ago.

One relative, speaking on the condition of anonymity, said they did not know he had been married and they were unaware of his alien status in the US.

Originally published as Australian man Robert Swan in legal battle over 9mm handgun in US