WHAT? My visceral reaction was immediately, “That’s crazy!” My considered conclusion is, “I think they do.”
US District Judge Sharon Johnson Coleman ruled yesterday in US v. Carbajal-Flores that the federal prohibition on illegal immigrants owning guns is unconstitutional, at least as applied to Heriberto Carbajal-Flores, an illegal with no criminal record or record of violence. “The noncitizen possession statute, 18 U.S.C. § 922(g)(5), violates the Second Amendment as applied to Carbajal-Flores,” Judge Colman wrote “Thus, the Court grants Carbajal-Flores’ motion to dismiss.” She reached this conclusion after considering the US’s historical tradition of gun regulation as set out in the Supreme Court’s landmark New York State Rifle and Pistol Association v. Bruen ruling. Breaking misdemeanor immigration laws alone should not be sufficient justification for stripping someone of gun rights, the judge determined.
“[C]arbajal-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,” Judge Coleman 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 also determined that based on the government’s historical analogue, where exceptions were made that allowed formerly ‘untrustworthy’ British loyalists to possess weapons, the individuals who fell within the exception were determined to be non-violent during their individual assessments, permitting them to carry firearms,” she wrote. “Thus, to the extent the exception shows that some British loyalists were permitted to carry firearms despite the general prohibition, the Court interprets this history as supporting an individualized assessment for Section 922(g)(5) as this Court previously found with Section 922(g)(1).”
She finally decreed, “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. Thus, this Court finds that, as applied to Carbajal-Flores, Section 922(g)(5) is unconstitutional.”
Upon calm reflection, I think the ruling could have been even simpler than that. Non-citizens have all the Bill of Rights rights when they are in the U.S. We don’t restrict the free speech of illegal immigrants, or inflict on them cruel and unusual punishment, or subject them to unreasonable searches. They can’t be forced to testify against themselves, and they have a right to an attorney. They can’t be prohibited from petitioning the government, or worshiping as they please. The usual exceptions to the Second Amendment right to own a gun—and these are still being sorted out—should apply, but none of them applied to the appellant in this case.
The U.S. Supreme Court will almost certainly have to settle the issue. The best way to settle it would be for Congress to make crossing our border illegally a felony. But as things stand now, I must agree with the judge.
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Source: The Reload
Ethics Alarms 
the inalienable rights of all are “life, liberty, and the pursuit of happiness”. I have always thought of the rights enumerated in the constitution and its subsequent amendments to be the rights enjoyed by citizens living in this nation not universal rights of man. Those enumerated rights are certainly not respected or enjoyed by us citizens while visiting other nations. So the question would be when and why the enumerated rights become universal rights. Not being a legal scholar, I await education on this matter.
They are not among the inalienable rights, but the Bill of Rights still states what rights the government cannot abridge. The word “citizen” doesn’t appear in any of the 10. “people,” “owner,” “accused”, etc…all apply equally to visitors, non citizens, citizens alike.
Your analysis makes perfect sense. It would however make sense to push for a Constitutional amendment that restricts protections to lawful entrants.
You can make the argument that unlawful entrants pose a national security threat and should be treated as potential combatants and thus should be barred from possessing firearms. This could also apply to birthright citizenship such that children born to unlawful and temporary entrants who give birth on American soil are not granted citizenship by virtue of that birth. The Constitution should not be the tool of our undoing as a nation.
Your analysis makes perfect sense. It would however make sense to push for a Constitutional amendment that restricts protections to lawful entrants.
Except that no item in the Bill of Rights has ever been made less inclusive by Amendment. That’s a slippery slope I’d stay away from like a venomous snake. A “hete speech” exception would be next on the list…
I think I may have mis-worded my statement. Why should unlawful entrants be afforded Constitutional protections? By limiting protections only to those lawfully here – travelers and those coming through ports of entry- we do not incentivize unlawful entry. It would not take much effort to establish lawful entry and eligibility for Constitutional protections.
Letting anyone and everyone into the country no matter how they enter is another slippery slope I don’t want to go down but we have that now so we need to anticipate the potential threats and how to mitigate them
Does the possession of arms by criminals in America while they are committing a crime have an aggravating affect on the crime, a mitigating affect or a neutral affect?
I think it’s aggravating. So by extension- no, an illegal immigrant does not have a right to bear arms even while immigrants and *all* non-Americans have the most ancient natural right available to them even if their home governments don’t recognize this.
But I don’t see an issue with saying that criminals doing crime don’t have a right to use weapons while doing that crime.
I suppose it matters about the crime of illegals immigration- is the crime the instance of crossing the border by itself? Or is the crime the continued presence of the illegal immigrant from the instance of crossing to the present?
Both.This my problem with the “Dreamers” logic. OK, they broke no law when they were carried across the order illegally by their parents. But once they achieve majority, they are obligated to report their presence here. and if not, they are committing a crime.
Then, including my comment below in my thoughts on this, *if* there is no overriding aspect of the most ancient right (self defense) of other considerations, then no, an illegal immigrant, who’s crime is being continually committed, doesn’t have the right to bear arms.
If there is some overriding aspect of self defense, then yes.
I guess I need to develop that additional question.
The “prohibited persons” language comes from the Gun Control Act of 1968, which outlines a handful of other categories of people that are denied this right. There’s an odd exception that possession is allowed if the alien possesses a hunting licence, but nothing about requiring the person to actually be involved in hunting tourism.
Somewhere I found a FBI report of the number of individuals in the NICS database broken down by each category, and alongside the number of convictions for illegial possession by each. “Nonresident aliens” had both the largest number of people prohibited and also the lowest number of convictions.
”Upon calm reflection, I think the ruling could have been even simpler than that.”
exactly my thought. Everyone enjoys the rights in the Bill of Rights because they are really restrictions on what the Government can do.
it really should be as simple as that.
-Jut
But I am open to arguments that the right to self defense predates civilization so much that it overrides even civilizational things like laws.
But in that case “aggravating” aspect of firearms possession while commuting a crime should be reevaluated except in cases where the firearm was *used* for the crime.
All this nit-picking about their right to possess firearms becomes moot when one realizes these illegals shouldn’t be in this country in the first place. It’s that simple.
A decade too late for me I guess. While I was waiting for my permanent residence papers (aka Green Card), I was not allowed to own a gun, use a gun, buy a gun, borrow a gun, or visit a shooting range with friends. Even when I was prevented from leaving the country so as not to reset my immigration clock. or after I got the Advance Parole document that allowed me to do so. Then again, this was in one of the top three states for unconstitutional laws (the one whose supreme court ruled last year that a law going against the plain text of the state constitution was cromulent). As an American by choice, I am offended.
Upon calm reflection, I think the ruling could have been even simpler than that.
In as much as 1A and 2A are predicated upon Enlightenment Era natural philosophy, they are inherent to being human, everywhere, always.
You are right. Absent due process that is equally applicable to US citizens, illegal immigrants are entitled to possess arms.
Other cultures not acknowledging rights doesn’t mean the rights don’t exist.
Exactly.
As usual, such a ruling is completely nonsensical. So, someone who jumps the border and breaks laws can purchase and own firearms, despite the fact that they are ‘undocumented’. A legal alien here on a student visa, say a 30 year old physics Ph.D. student, is prohibited, however. A US citizen with no criminal record can have all their firearms stripped of them and barred from firearms ownership based on unsubstantiated statements with no due process. Again, superior rights for illegal aliens. This is similar to the fact that I, a US resident, have to provide a valid ID, and that is supposed to be a so, so secure REAL ID to fly on an airplane, but people with no identifying documents can not only fly without id, they can fly for free! Also similar is all of the college financial aid and in-state tuitions for illegal aliens, but legal aliens or US residents.