Illegal Immigrant Can Carry Guns: Federal Judge

Semi-automatic firearms are displayed for sale in a store in a file image. Brandon Bell/Getty Images

An illegal immigrant was wrongly banned from possessing guns, according to a recent ruling.

A federal law, Section 922 of Title 18 of the U.S. Code, bars illegal immigrants from carrying guns or ammunition. Prosecutors charged Heriberto Carbajal-Flores, the illegal alien, in 2020 after he was found in Chicago carrying a semi-automatic pistol despite “knowing he was an alien illegally and unlawfully in the United States.”

U.S. District Judge Sharon Johnson Coleman rejected two motions to dismiss, but the third motion, based on a 2022 U.S. Supreme Court ruling, triggered the dismissal of the case on March 8.

“The noncitizen possession statute, 18 U.S.C. § 922(g)(5), violates the Second Amendment as applied to Carbajal-Flores,” Judge Coleman, appointed under President Barack Obama, wrote in her 8-page ruling. “Thus, the court grants Carbajal-Flores’ motion to dismiss.”

Lawyers for Mr. Carbajal-Flores had argued in the most recent motion to dismiss that the government could not show that the law in question was “part of the historical tradition that delimits the outer bounds of the right to keep and bear arms.”

In 2022, the Supreme Court determined that the U.S. Constitution’s Second Amendment “presumptively protects” conduct that is covered by the amendment’s “plain text.”

To justify regulations, governments must show that each regulation “is consistent with this nation’s historical tradition of firearm regulation,” the high court said at the time. “Only if a firearm regulation is consistent with this nation’s historical tradition may a court conclude that the individual’s conduct falls outside the Second Amendment’s ‘unqualified command,’” it said.

“Lifetime disarmament of an individual based on alienage or nationality alone does not have roots in the history and tradition of the United States,” Mr. Carbajal-Flores’s lawyers argued.

They pointed to several rulings interpreting the Supreme Court’s decision, including an appeals court ruling that declared stripping a man convicted of a nonviolent crime of his gun rights was unconstitutional.

The government opposed the motion, noting that neither of the cited decisions applied to illegal immigrants and that the defendant ignored other rulings that did, including a 2023 ruling that found that Second Amendment rights aren’t afforded to illegal immigrants. The government also offered examples of laws that prohibited certain categories of people from carrying guns, including “individuals who threatened the social order through their untrustworthy adherence to the rule of law.”

But Judge Coleman ruled for the defendant, finding that the laws against untrustworthy people contained exceptions for people who signed loyalty oaths and were deemed nonviolent.

“The government argues that Carbajal-Flores is a noncitizen who is unlawfully present in this country. The court notes, however, that Carbajal-Flores has never been convicted of a felony, a violent crime, or a crime involving the use of a weapon. Even in the present case, Carbajal-Flores contends that he received and used the handgun solely for self-protection and protection of property during a time of documented civil unrest in the Spring of 2020,” she wrote.

“Additionally, Pretrial Service has confirmed that Carbajal-Flores has consistently adhered to and fulfilled all the stipulated conditions of his release, is gainfully employed, and has no new arrests or outstanding warrants. The court finds that Carbajal-Flores’ criminal record, containing no improper use of a weapon, as well as the non-violent circumstances of his arrest do not support a finding that he poses a risk to public safety such that he cannot be trusted to use a weapon responsibly and should be deprived of his Second Amendment right to bear arms in self-defense.”

An attorney representing Mr. Carbajal-Flores declined to comment. Federal prosecutors didn’t respond to a request for comment.

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Kostas Moros, a lawyer who represents the California Rifle and Pistol Association, told The Epoch Times in an email that he thinks the decision will be overturned on appeal.

“It’s an outlier, a number of courts have said the opposite,” Mr. Moros, who wrote an analysis on the decision, said.

If the decision ends up being upheld, then Mr. Carbajal-Flores would be able to obtain a concealed carry permit.

Larry Keane, a lawyer for the National Shooting Sports Foundation, also weighed in on the ruling.

“Supreme Court has said the ‘people’ are members of the political community,” Mr. Keane wrote on X. “Illegal aliens in US are not part of the political community and thus do not have 2A rights.”

Matthew Larosiere, another lawyer, disagreed, writing in an analysis that all immigrants, even ones in the country illegally, are part of “the people” in the Second Amendment. His argument rested in part on the 14th Amendment, which applies to “any person within” the country.

“To find that illegal immigrants are outside of ’the people‘ protected by the Second Amendment, you must believe that the Framers were talking about a different ’people' in the First, Fourth, Ninth, and Tenth Amendments,” he wrote, adding later that he sided with the court in finding differences between historical laws such as the one that barred loyalists from owning guns and the law that applies to illegal immigrants.