Judge Sharon Coleman of the U.S. District Court for the Northern District of Illinois last week issued an opinion in U.S. v. Carbajal-Flores, finding a federal law making it a crime for an illegal alien to possess a firearm is unconstitutional as applied. District court orders have no precedential effect, but this one both muddies the waters on aliens’ criminal liabilities and further blurs the lines separating the rights of citizens and aliens, setting the case up for a Supreme Court opinion on aliens’ constitutional rights.
The Defendant and the Events of the Night of June 1, 2020. The defendant in this case is Heriberto Carbajal-Flores, and neither this latest opinion nor any of the court’s earlier ones makes clear what, exactly, his nationality is.
What is clear, however, is that he is not a citizen of the United States, and although he has been living here since 2002, he has no lawful immigration status.
On June 1, 2020, following the death of George Floyd, Carbajal-Flores was in the Little Village neighborhood of Chicago, Ill., which was then in the midst of protests that included some level of property destruction.
For reasons that are unclear, the defendant was near a business establishment he had no connection to, and which — he claims — a group of men were attempting to break into. That prompted Carbajal-Flores to “join[] what he describes as an impromptu neighborhood watch to protect the business”.
Another member of the watch handed him a gun just before 10:00 that night, and then:
At approximately 10:33 p.m., a white police van arrived at the street corner outside the shop. Defendant claims, and the government contests, that the police told him, “If you have anything, you should get it,” which Defendant took to mean that he should arm himself, though he already had.
In a 70-minute period between 9:30 and 10:40 that night, four cars allegedly drove past the location. Carbajal-Flores claimed that the passengers in one of those cars “yelled threats”, while passengers in another, he contended “pointed guns at the watch”. The other two cars simply “sped off”.
But then:
At 11:06 p.m., Defendant stepped into the crosswalk. A white car drove through the intersection in which he stood, without stopping. Video surveillance footage shows the car swerve slightly to its right, which Defendant says he interpreted as an attempt to hit one of the neighborhood watch. Defendant has never contended that the car [intended] to hit or strike him, or that its occupants possessed guns or made verbal threats to him. Defendant pulled the firearm from his pocket and fired seven shots at the vehicle, which Defendant contends were in warning. At 11:41 p.m., Defendant again pointed the firearm at another vehicle as it drove past but did not stop or swerve. He pulled the trigger of the gun repeatedly, which did not fire. Defendant attempted to unjam the gun and shoot again but was unsuccessful. Two minutes later, officers placed Defendant under arrest. [Emphasis added.]
I was not there, and I appreciate that tensions were running high, but if I were to fire seven rounds at a passing vehicle, even as a warning, the police would have more than a few questions for me, and I had better have some good reasons that involved me defending my life or the life of another.
18 U.S.C. 922(g)(5)(A) and Carbajal-Flores’ Second Amendment Claim. It appears that the only crime with which Carbajal-Flores was charged was a federal one, under 18 U.S.C. 922(g)(5)(A), which states, in pertinent part:
It shall be unlawful for any person-who, being an alien- (A) is illegally or unlawfully in the United States ... to ship or transport in interstate or foreign commerce, or possess 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.
The defendant argued, among other things, that this provision violated his rights under the Second Amendment of the U.S. Constitution, which states: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”
The judge initially rejected that claim, but revisited it in her latest order in light of the Supreme Court’s 2002 Second Amendment opinion in New York State Rifle and Pistol Association v. Bruen and the Seventh Circuit’s subsequent 2023 decision in Atkinson v. Garland.
In Bruen, the justices overturned a New York State law that had made it a crime for an individual to possess a firearm without a license, either in that individual’s residence or in public. The problem was that to obtain such a permit, the individual had to prove that “proper cause exists” for carrying the gun.
The Court invalidated that requirement, holding: “New York’s proper-cause requirement violates the Fourteenth Amendment [which incorporates the federal constitution to the states] by preventing law-abiding citizens with ordinary self-defense needs from exercising their Second Amendment right to keep and bear arms in public for self-defense”.
In reaching that decision, the justices built on their prior opinion in a separate firearm case, District of Columbia v. Heller, and focused on the text and history of the amendment itself to determine whether a restriction on firearm possession was a constitutional violation.
Atkinson involved a separate provision in section 922 of Title 18, paragraph (g)(1), which makes it a crime for anyone convicted of a felony to possess a firearm.
The circuit panel concocted a five-question test to implement that textual and historical analysis and vacated and remanded the conviction of the defendant there to the district court.
Judge Coleman determined in her most recent opinion that this test was applicable to section 922(g)(5), as well, and commenced to apply it in Carbajal-Flores’ case.
The government had argued that “the historical record” had established that “legislatures categorically disarmed” two separate groups of individuals relevant to section 922(g)(5): “individuals who were not members of the political community”; and “individuals who threatened the social order through their untrustworthy adherence to the rule of law”.
The defendant, in turn, argued that the latter group — the untrustworthy adherents to the law — had contained an historical exception that had allowed erstwhile British loyalists following the Revolution to sign loyalty oaths to the new Republic and thereby lawfully possess weapons.
The judge bought that argument and determined that Carbajal-Flores was entitled to an individualized assessment as to whether he was guilty under 922(g)(5).
She rather quickly brushed over the fact he was an alien here illegally to note instead that he “has never been convicted of a felony, a violent crime, or a crime involving the use of a weapon”, to accept his claims that he “received and used the handgun solely for self-protection and protection of property”, and to find that he had been compliant with the terms of his release.
Consequently, she found section 922(g)(5) was unconstitutional as applied in Carbajal-Flores’ case.
“There Has to Be a Distinction Between Citizenship and Non-Citizenship”. I should note that at the time that the Second Amendment was adopted, in December 1791, there were no federal immigration laws, and in fact the first time the word “alien” was used to describe foreign nationals was in “An Act Concerning Aliens” (one of the “Alien and Sedition Acts”), enacted in 1798.
That said, I am not a Second Amendment expert by any stretch, and the wording of the criminal provision aside, this is more a constitutional ruling than an immigration one.
But here’s what Sen. March Rubio (R-Fla.) had to say about this decision on Fox News’ “Hannity” on March 19:
Well, this is a ruling by an Obama-appointed judge, I believe, and look — what they’re trying to do is blur the line between citizenship and everything else, people that are here illegally. And then you’ve seen cities, for example, make an effort to allow people that are in this country illegally, that aren’t even citizens, to vote. This is another example, in this case. And you almost wonder if it's not being done to sort of mock both gun laws and also the whole ... understanding of the value of being a citizen of the United States of America. There has to be a distinction between citizenship and non-citizenship — between being legally here and not legally here. If there’s no distinction between being here legally or illegally, and there’s no distinction between being a citizen or not being a citizen, then what’s the point of even having citizenship, what’s the point of even having immigration laws? And this is just one more mockery that we’re finding in our court system. Luckily, I expect that this is going to be appealed and overturned at some point, because it’s an absurd outcome.
Judge Coleman, in fact, was appointed to the federal bench by President Obama in February 2010, though she was unanimously confirmed by the U.S. Senate on an 86-0 vote, a year before Rubio was first elected to the chamber.
Those facts aside, unfortunately host Sean Hannity pivoted after the senator made that statement to the issue of alien terrorism. I say “unfortunately” because Rubio was making timely and salient points about the views of at least some of the president’s supporters that blur the distinctions between alienage and citizenship to the point that there are few distinctions at all.
I saw that firsthand when I appeared as a witness at a House subcommittee hearing on March 7 on the “President’s Power to Secure the Border”. One of the points made by Democratic members there was that aliens are entering the country illegally because they lack legal channels to enter — essentially justifying illegal entries.
At the root of such arguments is the conclusion that foreign nationals have a right to come to this country, notwithstanding our immigration laws. That is a variation of a point made more clearly by the Biden administration to the effect that DHS must use its prosecutorial discretion in the interests of “equity”, to blunt the effect of the immigration laws because, in essence, those laws are discriminatory.
That belief is the basis for many of the administration’s immigration policies both at the border and in the interior, like mass releases of illegal migrants despite congressional mandates that they be detained and DHS Secretary Alejandro Mayorkas’ directive to ICE officers that: “The fact an individual is a removable noncitizen ... should not alone be the basis of an enforcement action against them.”
Those are all political issues, and none of this is to say that Judge Coleman was influenced in any way by such beliefs in her decision. Heller, Bruen, and Atkinson are all relatively recent decisions, and lower courts are still struggling to apply them in individual cases.
“Spectrum of Constitutional Protections”. As Rubio suggests, this case will almost definitely be appealed by DOJ to the Court of Appeals for the Seventh Circuit (which has jurisdiction over Illinois), and then possibly to the Supreme Court.
If it makes it to the justices, they will have an opportunity to clarify which constitutional rights apply to aliens and how those rights apply. The Harvard Law Review has noted:
The United States Constitution makes few distinctions between citizens and noncitizens, and the Bill of Rights makes no reference to citizens at all. Instead, it refers to "persons" or "the people.”
...
An analysis of the case law and statutes illustrates the spectrum of constitutional protections accorded to aliens based on their differing levels of connection with this country, ranging from minimal or no protection for aliens applying for initial entry into the United States, to a guarantee of at least some of the rights enumerated in the U.S. Constitution for aliens who have established permanent residence in the United States.
In its 2020 opinion in DHS v. Thuraissigiam, the Court held that an illegal migrant apprehended immediately after entry had “only those rights regarding admission that Congress has provided by statute”, not the ones guaranteed by the Constitution.
That may seem unremarkable, but that opinion actually resolved a major constitutional question that has lingered since Congress amended the law in 1996. Carbajal-Flores or a similar case would give the justices yet another opportunity to define and delineate the “spectrum of constitutional protections” aliens unlawfully present possess.
It’s not unreasonable for critics like Sen. Rubio to complain that the decision in this alien gun case “blurs the lines” between citizenship and alienage, though few seem to realize the administration has tacitly been blurring those lines for a while. But if this case makes it to the Supreme Court, the justices will have an opportunity to bring those lines back into focus.