The text of the Second Amendment reads (in part), "the right of the people to keep and bear arms shall not be infringed." But who are "the people" who possess that right? More specifically, does that term encompass folks who aren't U.S. citizens? 

At first blush, it seems to be a fairly easy question to answer. After all, why would a right of "the people" extend to people who aren't a part of the political community, including those who aren't in this country legally? That's the position taken by the Department of Justice, but the attorney for an illegal immigrant busted with a gun in Chicago contends that even undocumented immigrants possess certain constitutional rights, including the right to keep and bear arms. 

The case USA v. Heriberto Carbajal-Flores centers around Flores’ arrest in Chicago for having a firearm. Representing the federal government, Margaret Steindorf said Flores’ immigration status is important. 

“There is the common thread here of felons not abiding by the law and those unlawfully in the country also not authorized to be in the country,” Steindorf said in arguing court precedent allowing for certain individuals to be prohibited from having a firearm.

Representing Flores, Jacob Briskman said rights granted to “the people” aren’t relegated to only a few amendments in the Bill of Rights.

“The [U.S.] Supreme Court has decided that undocumented folks have First Amendment protections, Fourth Amendment protections, Fifth Amendment protections when they have come within the United States and developed substantial ties,” Briskman said.

U.S. District Court Judge Sharon Johnson Coleman agreed with Briskman's argument at trial, concluding that 18 U.S.C. § 922(g)(5), which makes it illegal to possess a firearm while in this country illegally or unlawfully, is a violation of Carbajal-Flores' Second Amendment rights. In her opinion, handed down last March, Coleman concluded: 

The government argues that Carbajal-Flores is a noncitizen who is unlawfully present in this country. The Court notes, however, that 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. 

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 out-standing warrants. 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. Thus, this Court finds that, as applied to Carbajal-Flores, Section 922(g)(5) is unconstitutional.

Coleman ruled that § 922(g)(5) is facially constitutional, but as applied to Carbajal-Flores the statute is a violation of his rights. Specifically, the judge held that in order to satisfy the federal statute there needs to be an individualized finding of "dangerousness". If Carbajal-Flores had previously been convicted of a violent crime, or even accused of a violent offense, he might not be allowed to possess a gun as an undocumented immigrant. But given the fact that the only crime Carbajal-Flores has been charged with is the non-violent, possessory offense of owning a gun, the federal government has failed to demonstrate that he poses a threat to himself or others. 

The DOJ contends, however, that Carbajal-Flores is dangerous. Steindorf argued that Coleman erred by calling the defendant non-violent ,"when in fact the defendant shot a firearm seven times at a passing car without provocation and tried to shoot at a second passing car shortly thereafter,” she told a three-judge panel on the Seventh Circuit. 

That particular appellate court has been pretty hostile to the Second Amendment rights of folks who are U.S. citizens, so I have a feeling the panel is likely to overturn Coleman's decision in the months ahead. I could be wrong, but I have a hard time seeing the same appellate court that says owning an AR-15s isn't protected by the Second Amendment concluding that an illegal immigrant's gun ownership is protected by the very same language.