In a decision earlier this month in U.S. v. Carbajal-Flores from the U.S. District Court for the Northern District of Illinois, Eastern Division, Judge Sharon Johnson Coleman concluded that you can’t always and under every circumstance prohibit people in the country illegally from legally possessing weapons.
The factual background of the prosecution of Heriberto Carbajal-Flores, as explained in Judge Coleman’s decision: “On June 1, 2020, Carbajal-Flores possessed a handgun in the Little Village neighborhood of Chicago, Illinois. Carbajal-Flores contends that he received and used the handgun for self-protection and protection of property. Because of Carbajal-Flores’ citizenship status, he was charged with violating of 18 U.S.C. § 922(g)(5), which prohibits any noncitizen who is not legally authorized to be in the United States from ‘possess[ing] in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.'”
Judge Coleman granted a motion to dismiss the charges against Carbajal-Flores, by declaring that such a blanket prohibition against weapons possession for a category of people can’t withstand scrutiny under current Second Amendment doctrine.
Carbajal-Flores has been on pre-trial release and “has consistently adhered to and fulfilled all the stipulated conditions of his release,” the decision explains. “Pretrial Services has conducted numerous employment visits at various sites, and Carbajal-Flores consistently provides the necessary documentation to verify his income when requested. A criminal record check conducted through the National Crime Information Center reflects no new arrests or outstanding warrants.”
So he was no demonstrated threat to the persons or property of Americans, despite his status crime of possessing a weapon when a law said he could not.
Judge Coleman tried in her decision to rethink earlier motions to dismiss on Carbajal-Flores’ part that had been denied in the context of both the Supreme Court’s 2022 New York State Rifle & Pistol Association v. Bruen decision which suggested courts needed to consider historical analogy arguments from the Founding times to decide whether current restrictions on the rights of weapon possession can exist under the Second Amendment, and the 7th Circuit’s 2023 Atkinson v. Garland decision which laid out a list of questions that tried to define how one might apply Bruen doctrine to laws against felon possession, which Judge Coleman thinks can be analogous to those against legally unauthorized noncitizen possession.
Judge Coleman decided, after considering that in the 19th century former British loyalists were on the basis of specific facts allowed to legally possess arms that others were not, 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. Thus, this Court finds that, as applied to Carbajal-Flores, Section 922(g)(5) is unconstitutional.”
She is not, then, saying that the law against undocumented noncitizens possessing guns is always and everywhere unconstitutional, but that its constitutionality is affected by the specific facts of specific defendants.
Judge Coleman’s decision that the Second Amendment applies to noncitizens such as Carbajal-Flores at least sometimes was not a wild innovation. Back in 2015, in a case out of the 7th Circuit like the Atkinson case that Judge Coleman discusses, Judge Diane Wood also decided in U.S. v. Meza-Rodriguez that in a “post-Heller world, where it is now clear that the Second Amendment right to bear arms is no second-class entitlement, we see no principled way to carve out the Second Amendment and say that the unauthorized (or maybe all noncitizens) are excluded. No language in the Amendment supports such a conclusion, nor, as we have said, does a broader consideration of the Bill of Rights.”
Despite declaring that such noncitizens ought not be completely outside the protection of the Second Amendment, Judge Wood in that case decided the noncitizen defendant could be prosecuted anyway. After the usual throat-clearing about how no right is absolute, Judge Wood concluded that “Congress’s interest in prohibiting persons who are difficult to track and who have an interest in eluding law enforcement is strong enough to support” prosecuting Meza-Rodriguez anyway. Many other courts did not and do not agree with what Wood and Coleman concluded about unauthorized noncitizens and the Second Amendment, so it’s a question ripe for eventual Supreme Court consideration. Whether the “people” to whom various constitutional rights apply must always be legal citizens has been denied in various other cases involving various other constitutional rights, such as the Fourth Amendment.
In a curious case of letting culture wars or tribal considerations overwhelm legal thinking, gun law scholar and generally a tenacious defender of a hardcore interpretation of the Second Amendment John Lott is suspicious that this is just “an Obama judge acting in a very calculated way to try to create problems for interpreting the Second Amendment.”
He’s not alone; social networks are full of right-wing supposed Second Amendment partisans angry that this Barack Obama–appointed judge has gone too far, in the service of some scheme to either have the U.S. conquered by gun-wielding immigrant Biden shock troops or to make the Second Amendment seem absurd by overapplying it.
As always, this decision, no matter how far it goes or if other courts respect it, is not about the right to commit actual crimes against other people or their property with the weapon; it’s merely about the right to possess them, the very right the Second Amendment was obviously designed to protect from government interference.
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