Undocumented Immigrants Have Right to Own Guns, Judge Rules

A judge this month dropped gun charges against an illegal migrant in Illinois, sparking further debate about the rights associated with the Second Amendment.

U.S. District Court Judge Sharon Coleman of the Northern District of Illinois referenced lower court rulings in dismissing firearm possession charges against Heriberto Carbajal-Flores, who was illegally or unlawfully in the United States when he possessed a handgun in the Little Village neighborhood of Chicago on June 1, 2020.

"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, who was appointed under President Barack Obama, wrote in her eight-page ruling filed March 8.

Carbajal-Flores was charged under Title 18 of U.S. Criminal Code, which legally disallows undocumented individuals to possess firearms and ammunition "or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce."

The defendant, who contended the firearm was possessed for self-defense and protection of property "during a time of documented civil unrest" in the spring of 2020, has never been convicted of a felony, a violent crime or a crime involving the use of a weapon.

There were myriad protests across the nation that spring following the May 25 killing of George Floyd by Minneapolis Police Officer Derek Chauvin, who was later sentenced to 21 years in prison.

Carbajal-Flores "has consistently adhered to and fulfilled all the stipulated conditions of his release," the ruling says, adding that he is gainfully employed and has no new arrests or outstanding warrants.

The court previously denied two motions by Carbajal-Flores to dismiss charges. The first time was on April 13, 2022, and the second on December 19, 2022—about six months after the U.S. Supreme Court voted 6-3 to strike down a 100-year-old New York law requiring that individuals show "proper cause" to get a license to carry a firearm outside a home, stemming from the 2022 ruling in New York State Rifle & Pistol Association, Inc. et al v. Bruen, Superintendent of New York State Police, et al.

That ruling was brought to the higher court after being challenged by the New York State Rifle & Pistol Association and gun owners Brandon Koch and Robert Nash.

"We hold that when the Second Amendment's plain text covers an individual's conduct, the Constitution presumptively protects that conduct," Justice Clarence Thomas wrote in the court's majority opinion. "To justify its regulation, the government may not simply posit that the regulation promotes an important interest. Rather, the government must demonstrate that the regulation is consistent with this nation's historical tradition of firearm regulation."

In May 2023, the U.S. Supreme Court ruled in favor of gun control advocates in Illinois and denied a request for an emergency injunction against the state's ban on the sale and new possession of semiautomatic firearms.

The request was made by the National Association for Gun Rights (NAGR) in response to Illinois Governor J.B. Pritzker's signed legislation enacting a statewide ban on "assault-style" weapons, including limits on magazine capacities.

"Those who are here illegally cannot possess a firearm of any kind that is obtained in illegal fashion," political commentator Jay Oliver told Newsweek via email. "There is a civil duty of gun shop owners, if by that route, to lawfully indemnify those who are trying to obtain weaponry of choice by cutting corners.

"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."