The right of the people to keep and bear arms shall not be infringed, but who makes up "the people" in the Second Amendment? Legal adults? Adults over the age of 18? Eligible voters?
The courts are fleshing out that question in a wide variety of cases; some of them filed by 2A advocates and organizations, and some brought by criminal defendants who are raising Second Amendment challenges to their prosecutions and convictions.
Heriberto Carbajal-Flores is one of the latter. Carbajal-Flores was born in Mexico, but has lived in Chicago since he was ten years old. According to the Seventh Circuit Court of Appeals, Carbajal-Flores now claims to be a lawful permanent resident, but he was an illegal alien when he was arrested and convicted for shooting a gun at a car driving by him during the civil unrest and riots sparked by the death of George Floyd back in 2020.
Carbajal-Flores maintains he was acting in self-defense, while the government contends he was the aggressor. Who's right didn't really matter to the Seventh Circuit, because the federal crime Carbajal-Flores was convicted of was 18 U.S.C. § 922(g)(5)(A), which forbids illegal aliens from possessing a firearm.
Carbajal-Flores raised a Second Amendment challenge to his conviction, and though a district court found the statute facially constitutional, he was successful in his as-applied challenge. As the Seventh Circuit explained:
Laws disarming British loyalists did not apply to those willing to pledge their loyalty to the nascent American government. Once an individual disclaimed his loyalty to the British government, he was no longer considered dangerous or untrustworthy and could therefore possess a firearm. From this historical exemption, the district court reasoned that Congress may disarm only untrustworthy or dangerous illegal aliens. It then concluded that Carbajal-Flores is a trustworthy adherent to the law because, among other things, he is employed and has no felony convictions. So, as applied to him, § 922(g)(5)(A) violated the Second Amendment.
The Justice Department appealed that decision, and on Wednesday the Seventh Circuit issued its own ruling overturning the district court and affirming Carbajal-Flores' conviction. In the court's view, "even if the plain text of the Second Amendment presumptively protects Carbajal-Flores because he falls within 'the people,' a long tradition exists of disarming individuals, like illegal aliens, who have not sworn allegiance to the sovereign."
From the common law onward, aliens have historically been disarmed unless and until they swore an oath of allegiance to the sovereign. The way § 922(g)(5)(A) operates maps onto that tradition. The law precludes only illegal aliens—those who have necessarily forgone the naturalization process—from possessing firearms. But an alien who obtains citizenship by taking the oath of renunciation and allegiance, 8 U.S.C. § 1448, is entitled to keep and bear arms like every other law-abiding American. In other words, the same relief—pledging allegiance—exists today that has existed throughout history.
Section 922(g)(5)(A) is thus sufficiently analogous to many earlier firearm regulations. Because the law “comport[s] with the principles underlying the Second Amendment,” we hold that it overcomes Carbajal-Flores’s facial challenge.
What about his as-applied challenge? The Seventh Circuit panel admitted that "the class of persons disarmed under § 922(g)(1) is potentially over inclusive" and "the historical justification for disarming some felons may not support disarming all felons." When it comes to the statute dealing with unlawful aliens, though, the court says there's no wiggle room for individuals like Carbajal-Flores.
Section 922(g)(5)(A) does not present the same potential overinclusion problem. As discussed, our Nation’s regulatory tradition supports disarming aliens who have not sworn an oath of allegiance to the sovereign. The challenged statute extends no further than disarming people “illegally or unlawfully in the United States.” 18 U.S.C. § 922(g)(5)(A). That is, people who have not naturalized and taken the oath of renunciation and allegiance.
We express no views on whether criminal defendants may lodge as-applied challenges to other provisions contained in§ 922(g)’s various subsections. But district courts need not conduct individualized assessments of illegal aliens for purposes of § 922(g)(5)(A). The district court here accordingly erred in holding the statute unconstitutional as applied to Carbajal-Flores.
It's interesting to me that the panel put so much weight on an oath of allegiance to the sovereign when it comes to the right to keep and bear arms, at least when it comes to aliens. I wonder if the panel believes that U.S. citizens could also become prohibited from possessing a gun if they refused to do so... but hopefully that remains a thought exercise and not an actual criminal case.
I consider myself a Second Amendment absolutist, but I didn't have a huge problem with the Seventh Circuit's decision here, at least immediately. While self-defense is a human right in my view, the text of the Second Amendment explicitly says the right to keep and bear arms in the United States belongs to "the people". So why should that phrase apply to people who are in this country illegally?
That's where things get a little fuzzy. Illegal aliens can't vote in federal elections. They can't hold federal office. But they are required to register with the Selective Service, and they're eligible to be drafted. It seems to me that if someone can be mandated to bear arms in defense of the country, they arguably should have a right to bear arms in defense of themselves and others.
If illegal aliens were prohibited from serving in the military and weren't eligible to be drafted I don't think I'd have a problem with the Seventh Circuit's decision, and maybe that statute should be challenged in court going forward. But the inconsistency troubles me, and I think there's a common sense (if not a Constitutional) case to be made that the appellate court erred when it essentially held that under no circumstances do illegal aliens have the right to keep and bear arms.
Editor’s Note: Thanks to President Trump, illegal immigration into our great country has virtually stopped. Despite the radical left's lies, new legislation wasn't needed to secure our border, just a new president.
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