The Second Amendment and Illegals? Read the U.S. District Judge’s Decision

Earlier this week in Illinois, U.S. District Judge Sharon Johnson Coleman delivered a significant ruling regarding the gun rights of non-citizens who enter the United States illegally. She found that the Second Amendment to the Constitution protects these individuals' gun rights.

no guns allowed sign on window

Federal Law Prohibiting Non-Citizens from Possessing Firearms:

While there is a federal prohibition on illegal immigrants owning firearms, 18 U.S.C. § 922(g)(5), she ruled this prohibition unconstitutional as applied to the illegal-immigrant defendant in this case, Heriberto Carbajal-Flores. Judge Coleman's decision was based on the argument that, although the federal ban might seem constitutional on its face, there isn't a historical tradition of firearm regulation (NYSRPA v Bruen) that allows the government to prevent a non-citizen, who has no record of violent crime, from exercising their Second Amendment rights.

She wrote, 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…The noncitizen possession statute…violates the Second Amendment as applied to Carbajal-Flores,

The Bill of Rights and Non-Citizens:

second amendment and illegal aliens

Here, a sign in Arizona warns of smuggling and illegal immigration. (AP FILE Photo/Gregory Bull)

The case, United States v. Carbajal-Flores is part of a broader legal discussion about how the Bill of Rights applies to non-citizens, and specifically those in the United States illegally. While most rights are clearly afforded to everyone on U.S. soil, such as the right to due process, historically, the Second Amendment right to bear arms has not.

The Supreme Court has ruled on several cases involving non-citizens and the Bill of Rights, shaping how these rights apply to non-citizens in the United States. Here are a few key rulings:

  • Yamataya v. Fisher (1903): The Court held that non-citizen residents of U.S. territories were entitled to due process rights under the Fifth Amendment.
  • Wong Wing v. United States (1896): The Court ruled that non-citizens, even those residing unlawfully in the United States, are entitled to due process rights under the Fifth and Sixth Amendments.
  • Zadvydas v. Davis (2001): The Court held that indefinite detention of non-citizens who are subject to deportation but cannot be removed from the United States is limited by the Due Process Clause of the Fifth Amendment.
  • Boumediene v. Bush (2008): The Court ruled that non-citizen detainees at Guantanamo Bay have the right to habeas corpus review to challenge their detention.

The extent to which non-citizens are protected by the rights in the Bill of Rights can vary based on the specific right and context. Generally, most rights in the Bill of Rights apply to non-citizens within the United States, but there are some exceptions or limitations. Here are a few examples:

  • Second Amendment (Right to Bear Arms): The US Supreme Court has not directly ruled on this issue. And even with the Federal Court’s recent finding, there is continuing debate over whether non-citizens should have the same Second Amendment rights as citizens, especially concerning firearm ownership and possession.
  • Fourth Amendment (Searches and Seizures): Non-citizens are generally protected from unreasonable searches and seizures, but there are some exceptions for border searches and searches related to immigration enforcement.
  • Fifth Amendment (Due Process): Non-citizens are entitled to due process rights, including the right to a fair hearing before being deprived of life, liberty, or property. However, the level of process required may vary based on the individual's immigration status.
  • Sixth Amendment (Right to Counsel): Non-citizens have a right to legal representation in criminal proceedings, but there are limitations on government-funded counsel for non-citizens in immigration proceedings.
  • Seventh Amendment (Right to Jury Trial in Civil Cases): This right is generally not extended to non-citizens in civil cases.
  • Eighth Amendment (Cruel and Unusual Punishment): Non-citizens are protected from cruel and unusual punishment, but there are some exceptions related to immigration detention and deportation.

Are Illegal's Part of “We the People”?

It may seem cut and dry, but there are some other considerations to look at. John Cicchitti wrote a very detailed paper for George Mason Law Review titled: The Second Amendment and Citizenship: Why “The People” Does Not Include Noncitizens. In it Cicchitti looks at the definition of the term “the people” in the Second Amendment, and how the original writers would have meant it to mean. In the paper, Cicchitti states his conclusion this way:

The Second Amendment does not provide a right to keep and bear arms to noncitizens. From the Supreme Court’s metamorphosis of the Verdugo-Urquidez standard to its emphasis on citizenship throughout Heller, the decision offered convincing evidence that the right is limited to citizens only. The right guaranteed in the Second Amendment should be limited to members of the “political community,” as Heller mandates. Failing to exclude noncitizens may restrict legitimate legislative and executive action in dealing with noncitizens and foreign affairs. This critical question will require reasoned consideration of Supreme Court precedent, the separation of powers, and complex constitutional rights. All point toward equating “the people” of the Second Amendment with citizenship.

The Second Amendment Debate is Far From Over:

I think it's a safe bet that this is not the end of the discussion on non-citizens and the Second Amendment. This issue is not our standard, pro vs anti second amendment argument.

Essentially, the more Libertarian/conservative, pro-gun side person falls somewhere between agreeing with this decision, saying any restriction on the Second Amendment is too much, and that any “nuanced” view is a slippery slope; and recognizing some prohibiting restrictions on firearm ownership, such as convictions of violent felony, adjudicated mentally defective etc.

The progressive, anti-gun folks are also split and fall somewhere on a spectrum. On the one hand, any restriction of gun rights is a step in the right direction, because guns are bad. On the other hand, “no one is an illegal,” they are just “migrants”. And it doesn't seem consistent to give those here illegally, free healthcare, flights, housing, and public subsidies, and restrict a constitutional right. To show the break from the “no one is illegal” mantra, Yahoo's reporting on this case referred to Heriberto Carbajal-Flores as an “illegal” and not an “undocumented dreamer.”

Okay, I know you have an opinion. Let's hear it. Leave a comment below and check out the latest episode of the Concealed Carry Podcast.

About Matthew Maruster

I follow my Lord and Saviour Jesus Christ who is the eternal co-equal Son of God. I currently live in Columbus, Ohio with my wife and daughter. I served in the Marine Corps Infantry. I was a Staff Sergeant and served as a Platoon Sergeant during combat in Iraq. After I was a police officer at a municipal agency in San Diego County. I have a Bachelors's Degree in Criminal Justice from National University. MJ Maruster Defense.

14 Comments

  1. Kyle Spisak on March 27, 2024 at 10:16 am

    I am confused. This came out of Illinois where it is extremely difficult and prohibitive to own a firearm. How was the defendant able to purchase the firearm in Illinois without a FOID card and background check. I live in Missouri and if I bring a firearm into Illinois I will be arrested as a felon. Illinois won’t even recognize Missouri CCW.

    • Jared K on April 1, 2024 at 7:41 am

      There is a legal immigration process. Those that take the time and make the effort to jump through the hoops and actually become legal US citizens should be afforded the rights that all legal US citizens are. Then, if they are not legally prohibited from owning a gun, they may do so.

      • Dave L on April 2, 2024 at 9:47 pm

        I agree with you 100%, but this guy was illegal . . .”U.S. District Judge Sharon Johnson Coleman delivered a significant ruling regarding the gun rights of non-citizens who enter the United States illegally. . . . unconstitutional as applied to the illegal-immigrant defendant in this case, Heriberto Carbajal-Flores.”

      • James on April 9, 2024 at 7:45 am

        If they play by the rules ( laws of the land,) then they should be able to have the rights. I respect those that did it the right way. I have several friends that are from Mexico and became citizens. You can’t find better people.

    • James on April 9, 2024 at 7:40 am

      Great question! Unfortunately the courts are unbelievably stupid. They’re not “dreamers” carrying a illegally obtained firearm. They are a invaders that come here illegally and should be treated as HOSTILES, as they are to the real American dream.

  2. Clark Kent on March 27, 2024 at 9:31 pm

    I am on the conservative/pro-gun side and think illegals owning firearms will bring upon the end of the USA. If illegals have the ‘right’ to bear arms they also have the ‘right’ to vote, the ‘right’ to become police officers and the ‘right’ to hold elected offices. WAKE UP!

  3. Mordecai on March 31, 2024 at 9:11 pm

    I am an Air Force brat. I’ve lived in other countries, seen other cultures. I hold dual nationaity the United States and Great Britain. This could broadly be defined as an immigration issue.
    1.Definitions: an immigrant is someone who is here legally, has officially applied, and been accepted
    Welcome! All others are illegal aliens. Period.
    2. How do we fix this? First, seal the border. No ifs ands or buts. Fix our immigration system. Make a streamlined, efficient and fair system. Fair to who? This country and its needs. We are not interested in welfare cases. Be prepared to help pull the wagon. We will help you all we can, language classes, work study programs, housing etc. For 5 years. If you can’t make it by then, back you go, to try again. Also, commit a crime in that same period and back you go, never to return. If you come here we expect you to assimilate to our culture. Become a part of the great melting pot that makes our country unique in the world. Yes, American exceptionalism is a thing.
    3. Fix our bipartisan deal making that likes illegal immigrants for their cheap labor, a system rife with abuse. Yes, prices would increase, especially in agriculture. You can’t have it both ways.
    4. If you are here illegally, and give birth, your child is not automatically a U.S. citizen. Furthermore if your family is accepted for immigration, it’s only your immediate family. No grandparents, aunts, uncles cousins, etc.
    5. If there’s one thing I’ve learned over my 64 years on this planet, it’s that we’re all children of God. We all bleed red, and have wants, needs, desires, loves and fears. As a counselor I’ve worked with refugees through translators and I know this to be true. My heart goes out to all who are fleeing brutality and tyranny. Still, we need an orderly system that allows us to separate the sheep from the goats, and at a rate that we can absorb. Otherwise you get what we currently have at our southern border. Anarchy, a humanitarian crisis and the wolves preying on the helpless.

    • Brandon D. on April 2, 2024 at 6:50 pm

      Thank you!! Set up a few Tesla size buildings along the borders with signs explaining that if you get to the safe entry points you will be given citizenship. Keep spreading your knowledge and warmth. Someone important will hear you one day and make changes or grow up to make changes.

    • Dave L on April 2, 2024 at 9:50 pm

      You have my vote! It’s just not that complicated.

    • James on April 9, 2024 at 7:56 am

      I like that “separate the sheep from the goats,” comment. Easy way to understand the two types flooding the border.
      The only thing I would disagree with is blood grandparents should be in the “immediate” family. Amen
      Keep preaching, there’s someone listening

  4. Crimson on March 31, 2024 at 10:11 pm

    As a life long resident of Illinois, I am little surprised by this ruling coming out of one of our Federal district courts. This illegal did not have a FOIC, which is required to purchase and/or possess a firearm. I’ve heard from a couple of sources that lawsuits seeking to invalidate the Illinois FOIC and CCL requirements are in the works. And some in the state legislature are pushing back against Pritzker’s desire to allow illegals in good standing to become police officers. Much prayer and strength are need to survive these ruling from a political corrupted state judiciary.

  5. Ron Holland on April 1, 2024 at 7:24 am

    Cicchitti states his conclusion this way:

    “The Second Amendment does not provide a right to keep and bear arms to noncitizens.”

    Well, it does not provide a right to citizens either. It simply PROTECTS an existing right, mine by birth as a human created by God. He is the SOURCE. The Second Amendment simply states that the specific God given right to keep and bear arms SHALL NOT BE INFRINGED.

    The right is not related to citizenship. Nor should violation of one law permit the state to infringe a basic human right. With respect to such human rights, citizens and non-citizens are equal.

    • Clark Kent on April 2, 2024 at 8:30 pm

      You have it bass ackwards. Illegal aliens have ZERO ‘rights’ because they are here ILLEGALLY. Your reasoning would allow convicts in prisons to ‘keep and bear arms’.

  6. Droopy on April 2, 2024 at 10:21 pm

    There is a such thing as a legal process for those coming to our country and getting citizenship without any criminal background should be allowed to purchase and buy a firearm. However this judge should be disbarred and immediately removed from the bench. These illegals first of all have broken the law coming into this country and now expect to have our laws to protect them?. I think not. They need to be shipped right back where they came from. No firearms, no housing, no medical, no nothing. All of those that rushed the border the other day pushing and putting hands on our troops should have have been given the order to use lethal force if necessary to protect our borders. Let our National Guard and State Police do their job they was trained to do. . Do you think N. Korea, Iran,or some other terriorist countries would tolerate that?. Hell no and now our government wants to reward them by letting them have guns?. But oh let’s not forget they want to strip us of our rights to defend ourselves against tyranny. 😡

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