In June 2020, Heriberto Carbajal-Flores was found in possession of a handgun in Little Village, a neighborhood of Chicago.
As an illegal alien, he was charged under 18 U.S.C. §922(g)(5), possession of a firearm by an alien who is illegally or unlawfully in the United States.
- It shall be unlawful for any person—
- who, being an alien—
- is illegally or unlawfully in the United States; or
- except as provided in subsection (y)(2), has been admitted to the United States under a nonimmigrant visa (as that term is defined in section 101(a)(26) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(26)));
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.
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In her December 2022 order, Judge Sharon Johnson Coleman but it this way:
The Court presumes familiarity with its April 13, 2022 order denying Carbajal-Flores’ first motion to dismiss. As relevant here, on June 1, 2020, Defendant 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 in violation 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.”
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In her order, she talks about citizenship status and noncitizen. This is a strange way of putting it, but acceptable.
She then goes on to state the Heller methodology, as affirmed by Bruen correctly. Text, History, and Tradition.
The state argued that Carbajal-Flores was not part of The People because he was not a “law-abiding” resident of the United States. In turn, Carbajal-Flores argued that because the Seventh Circuit held that the Second Amendment protects an illegal alien’s right to keep and bear arms.
That rabbit hole leads to US v. Meza-Rodrigues. This is an opinion issued by a three judge merits panel for the Seventh Circuit court. That panel included the infamous judge Easterbrook and Judge Wood. They are infamous for finding that some firearms aren’t really arms under the plain text of the Second Amendment.
But as this case was about an illegal alien, or as Judge Wood put it whom we will call “unauthorized aliens”
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Judge Wood expressed her grave concerns: The consequences of Meza-Rodriguez’s conviction are not theoretical; his right ever to reenter the United States hangs in the balance.
[xCite item=”V5XRKILK” p=6 pos=3].
Yeah, you or me having our rights denied, no big deal, having an illegal alien have to stay in Mexico? That’s a gigantic deal.
Judge Flaum, concurred, saying:
I concur in the judgment. Unlike the majority, I have doubts that the Second Amendment grants undocumented immigrants the right to bear arms, as my read of District of Columbia v. Heller, 554 U.S. 570 (2008), does not suggest such an expansive interpretation. But because we need not make that determination in reaching our result in this matter, I would follow the Tenth Circuit’s prudential approach and reserve resolution of this challenging constitutional question for a case that compels addressing it. See United States v. Huitron-Guizar, 678 F.3d 1164, 1169–70 (10th Cir. 2012)
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I don’t understand why Carbajal-Flores would cite to the concurring opinion, it doesn’t feel as strong as what Judge Wood wrote. Regardless, in Meza-Rodriguez the Seventh Circuit found that illegal aliens are part of “The People”.
What did Heller actually say?
What is more, in all six other provisions of the Constitution that mention “the people,” the term unambiguously refers to all members of the political community, not an unspecified subset. As we said in
United States v. Verdugo-Urquidez, 494 U. S. 259, 265 (1990):
“ ‘[T]he people’ seems to have been a term of art employed in select parts of the Constitution. … [Its uses] suggest[t] that ‘the people’ protected by the Fourth Amendment, and by the First and Second Amendments, and to whom rights and powers are reserved in the Ninth and Tenth Amendments, refers to a class of persons who are part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community.”
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The Seventh Circuit got it right in Meza-Rodriguez when they found that he was a person[s] who [is] part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community.
[xCite item=”LPGQXCDT” p=580 pos=6]. He was smuggled into the US by his parents when he was less than 5 years of age. He had been a part of the community for an extend period of time.
I do not know enough about him to know if he was a “good guy” or a “bad guy”. Regardless, he met the criteria.
To be clear, in my opinion, Meza-Rodriguez was a member of the community and part of The People. He was also an illegal alien that needed to be deported.
On the other hand, Carbajal-Flores does not meet that criteria. He was a bad person, doing bad things, got caught doing it, was deported and should stay deported.
The state argued that he was not part of The People because he was not “law-abiding”. This is a losing argument. It should be a losing argument every time.
I don’t lose my Fifth Amendment protected rights because I did something considered “unlawful.” Nor do I lose my Fourth Amendment protected rights to be secure in my person and papers, just because the state says I am not “law-abiding”.
In 2022, Judge Sharon Johnson Coleman found that Carbajal-Flores was not part of “The People” and thus was not protected under the plain text of the Second Amendment. Carbajal-Flores filed a motion for reconsideration. This time, Judge Coleman found that he was a member of The People and entitled to Second Amendment Protections.
Having found that the plain text was implicated, the state bore the burden of proof to prove that there were regulations from the founding era banning the possession of arms to “non-citizens”.
The state failed. Judge Coleman found 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
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Of note, this is an “as applied” finding. It does not extend to any other illegal alien. It only applies to Carbajal-Flores. The order can be cited in other cases but is not binding on any other court, nor does it affect §922(g).
Whether Judge Coleman was playing games, she was just about locked into this finding. As an inferior court to the Seventh, she should be following their rules, no matter how bad.
Nothing in this case screams that it is a violation of Heller or Seventh Circuit case law.
As an absolutist regarding the Constitution, I have to say anything that chips away at §922 or the NFA is a positive outcome.
So it stands like this, to me:
18 U.S.C. §922 is unconstitutional. Being an illegal alien is grounds for deportation.
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