Federal Judge Allows Unauthorized Immigrants to Possess Firearms

(ReliableNews.org) – In June 2020, undocumented immigrant Heriberto Carbajal-Flores was arrested in Chicago for possessing a firearm. According to prosecutors, he violated 18 USC 922: Unlawful Acts, which prohibits any person who is in the United States illegally from “possess[ing]…any firearm or ammunition.” The defense called for a dismissal of the case stating the act violated the Second Amendment, the Equal Protection Clause, and the Commerce Clause. Recently, a judge ruled in his favor.

What Happened?

On March 8, U.S. District Judge Sharon Johnson Coleman dismissed the charges against Carbajal-Flores, ruling the noncitizen possession statute within the federal law violated the Second Amendment “as applied to” the defendant. She referenced several cases to back her ruling, including New York State Rifle & Pistol Association v. Bruen. In that case, the Supreme Court “established a framework” for determining whether a regulation violated the right to bear arms as defined in the US Constitution. Coleman ruled that Carbajal-Flores’ conduct in 2020 was “covered by the plain text of the Second Amendment.”

During the case, the government stated the defendant was a person “unlawfully present” in the United States, but noted he had no prior “felony,” “violent crime,” or weapon violation felony convictions. Federal prosecutors stated that Carbajal-Flores claimed he received the handgun to use for “self-protection and protection of property during a time of documented civil unrest.”

The defendant’s arrest happened in the wake of George Floyd’s murder in Minneapolis. According to Carbajal-Flores’ story, he was in the Little Village neighborhood protecting a local shop. He said several individuals had already tried to break into stores in the area and he joined a neighborhood watch, so to speak. During the watch, someone handed him a gun to help secure the area. While conducting that self-appointed duty, the defendant shot at one vehicle — alleged warning shots — and tried to fire at another when the gun jammed. He was arrested soon thereafter.


Reactions to the judge’s ruling were mixed. Writer and Attorney Matthew Larosiere wrote that the framers of the Constitution were referencing all people in the United States when drafting the short verbiage of the Second Amendment — including those here illegally. He noted if “illegal immigrants” were separate from “the people,” that logic would also apply to other amendments that cover everyone.

Senator Marco Rubio (R-FL) also reacted to the ruling while on “Hannity,” stating the decision blurred the line between citizens and noncitizens. He said, “There has to be a distinction…between being legally here and not legally here.”

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