Illegal aliens have constitutional right to carry gun: Federal judge

A federal judge in Illinois has declared unconstitutional a federal statute prohibiting illegal aliens from owning a firearm.

In June 2020, Heriberto Carbajal-Flores, who is in the United States illegally, was arrested in Chicago for carrying a handgun in violation of Title 18 of the U.S. Criminal Code, which prohibits illegal immigrants from possessing firearms or ammunition. Carbajal-Flores and his attorneys argued that he carried the gun for self-defense "during a time of documented civil unrest" following the death of George Floyd.

Two lower courts disagreed and affirmed the Title 18 statute. On March 8, however, U.S. District Court Judge Sharon Johnson Coleman of the Northern District of Illinois, an Obama appointee, reversed those lower court decisions and ruled that Carbajal-Flores did not forfeit his natural right to self-defense simply because he is in the U.S. illegally.

"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," Coleman wrote in the decision.

The ruling seems to hinge on the wording of the Bruen case decided by the U.S. Supreme Court in 2022. In that case, SCOTUS justices ruled 6-3 that gun restriction legislation must be "consistent with this nation’s historical tradition of firearm regulation." As there seems to be no historical precedent for illegal immigrants immediately losing their right to self-defense, Coleman ruled in favor of the defendant and declared the statute unconstitutional.

"The noncitizen possession statute, 18 U.S.C. § 922(g)(5), violates the Second Amendment as applied to Carbajal-Flores. Thus, the court grants Carbajal-Flores’ motion to dismiss," the ruling stated.

The ruling has found favor with many gun rights advocates. In a blog post on the website Bearing Arms — which calls self-defense "a pre-existing, inalienable right" — Navy veteran Tom Knighton noted that as "a natural right," the Second Amendment "would naturally apply to everyone, even those who broke the law in coming into this country."

Attorney Matthew Larosiere, who specializes in the Second Amendment, likewise argued, "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."

Political commentator Jay Oliver took a slightly different, though not necessarily incompatible, view. "Those who are here illegally cannot possess a firearm of any kind that is obtained in illegal fashion," Oliver said in a statement to Newsweek (emphasis added). "... Unfortunately, we have seen too many trends where innocent lives are being lost based on upon the progressive nature of those in charge of courts and opinions."

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