Judge rules illegal immigrants have gun rights protected by 2nd Amendment

A federal judge in Illinois has found that the Constitution protects the gun rights of noncitizens who enter the United States illegally.

U.S. District Judge Sharon Johnson Coleman on Friday ruled that a federal prohibition on illegal immigrants owning firearms is unconstitutional as applied to defendant Heriberto Carbajal-Flores. The court found that while the federal ban is “facially constitutional,” there is no historical tradition of firearm regulation that permits the government to deprive a noncitizen who has never been convicted of a violent crime from exercising his Second Amendment rights.

“The noncitizen possession statute … violates the Second Amendment as applied to Carbajal-Flores,” the judge wrote. “Thus, the Court grants Carbajal-Flores’ motion to dismiss.”

Coleman, a President Obama appointee, cited the landmark Supreme Court decision in New York State Rifle and Pistol Association v. Bruen (2022), which established a new standard to determine whether a law violates the Second Amendment. Since Bruen, a multitude of federal and state gun control measures have been challenged in courts with mixed results.


The Second Amendment of the U.S. Constitution states that “the right of the people to keep and bear Arms, shall not be infringed.” (iStock)

In this case, U.S. v. Carbajal-Flores, the court considered whether people who enter the country illegally can be banned from owning firearms.

Carbajal-Flores is an illegal immigrant who, on June 1, 2020, was found to be in possession of a handgun in the Little Village neighborhood of Chicago. He was subsequently charged with violating a federal law that prohibits any noncitizen who is not legally authorized to be in the U.S. 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.”

In an April 2022 decision, Coleman denied Carbajal-Flores’ first motion to dismiss his indictment, finding that the ban was constitutional. However, Carbajal-Flores asked the court to reconsider that ruling following the Supreme Court’s decision in Bruen and appellate decisions in the Third and Seventh circuits that considered whether people convicted of nonviolent crimes can be prohibited from possessing firearms.


U.S. District Judge Sharon J. Coleman, left, presents an award on May 1, 2019. (U.S. District Court for the Northern District of Illinois, Eastern Division)

Upon review, Coleman concluded that Carbajal-Flores’ illegally present status was not sufficient to deny him Second Amendment rights. The judge said the “plain text” of the Constitution “presumptively protects firearms possession by undocumented persons.”

“Carbajal-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,” the judge 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 determined that because there is insufficient evidence to suggest Carbajal-Flores is a danger to society, there is no historical analogue that would permit the federal government to deny him his gun rights.


A federal judge in Illinois has ruled that the Second Amendment protects the gun rights of illegal immigrants. (Kyle Grillot/Bloomberg via Getty Images/File)

“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 wrote. “Thus, this Court finds that, as applied to Carbajal-Flores, Section 922(g)(5) is unconstitutional.”

The ruling has divided gun rights activists, with some arguing that noncitizens should not have rights protected by the Constitution.

Erich Pratt, senior vice president of Gun Owners of America (GOA), told Fox News Digital his group “has historically recognized the dangers unchecked illegal immigration presents, chiefly of which is a serious potential to swing the balance of power into the hands of anti-gun politicians.”

Pratt reiterated GOA does not support amnesty for illegal immigrants.

“In this underlying ruling, the Second Amendment community undoubtedly has mixed feelings, because while illegal aliens are most certainly not part of ‘the People,’ everyone has a God-given right to defend themselves against violent acts like rape and murder,” he said.

“Of course, the courts wouldn’t have to decide this question if Joe Biden and the Democratic Party would simply secure our borders.”

Chris Pandolfo is a writer for Fox News Digital. Send tips to [email protected] and follow him on Twitter @ChrisCPandolfo.

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