Every so often a case comes around that makes me stop and rethink my views on firearms rights. Such is the case of Heriberto Carbajal-Flores who is residing in the United States illegally and was charged for possessing a firearm under 18 U.S.C. § 922(g)(5), the noncitizen possession statute. US District Judge Sharon Johnson Coleman ruled this section of the law to be unconstitutional and dismissed the charges.
18 U.S.C. § 922(g)(5) is quite simply
(g) It shall be unlawful for any person—
(5) who, being an alien—
(A) is illegally or unlawfully in the United States; or
(B) except as provided in subsection (y)(2), has been admitted to the United States under a nonimmigrant visa (as that term is defined in section 101(a)(26) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(26)));
The ruling was based on the United States Supreme Court’s New York State Rifle & Pistol Association, Inc. v. Bruen (Bruen) ruling as the key element. Post Bruen, all Second Amendment related laws must be consistent with the “text, history, and tradition” of the country, with the burden of proof falling on the State when a law is challenged.
Carbajal-Flores had never been convicted of a felony, a violent crime, or a crime involving the use of a weapon. In this 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 logic behind the applicability to a non-citizen in the United States boils down to the wording of the Second Amendment.
“A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”
Like the First, Fourth, Ninth and Tenth Amendments, the word “people” was used, not “citizen”. This was certainly not a mistake of terminology as the Founders understood the difference and used the word “citizen” eleven times in the Constitution.
We correctly view our rights as “natural rights” or “pre-existing, inalienable rights”, protected by the Constitution and Bill of Rights, not granted by them.
To say the United States does not recognize the difference is absurd. Amendment XIV, Section 1, Clause 1 of the Constitution directs that all persons born in the United States are citizens. First, Fourth, Ninth and Tenth Amendments are unquestionably applied to non-citizens in the United States.
The United States detention center at Guantanamo Bay, Cuba was specifically created to keep enemy combatants captured during the War on Terror following the 9/11 attacks out of the US court system and have them subject to the same Constitutional rights and privileges as those on US soil.
This case comes at a noteworthy time in our country with the current administration facilitating the influx of millions of illegal aliens, politically termed as “migrants”, and “asylum seekers”. The administration wants to bestow upon them all the rights and privileges of citizenship, including voting, along with many benefits not available to citizens such as free healthcare, housing, provisions, income, and legal representation. But at the same time, the one enumerated right they don’t believe anyone should have, the right to bear arms, is something they are willing to deny.
It will be interesting to see if the federal government uses the same type of historical analogues the states have used in their defense of gun control laws which have been ruled unconstitutional. Recall numerous arguments have been made which referenced laws restricting the sale and trade of firearms and gunpowder to Native Americans due to the risk of “Native violence”. Perhaps they’ll be able to cite the disarmament of British loyalists, Native Americans, and black people as applicable “text, history, and tradition”.
There are of course multiple avenues to keep firearms out of the hands of non-citizens. Universal background checks, a favorite (yet useless) approach of the gun control zealots, mandates all firearms sales and transfers must be conducted through a Federal Firearms Licensee (FFL). Even if question 21, l (Are you an alien illegally or unlawfully in the United States?) on Form 4473 was voided, they could deny the transfers based on inadequate personal identification.
This would be directly opposite of the decision to allow illegal aliens to fly into and around the United States using nothing more than a civil immigration violation form or an unvalidated entry in the CBP One app, while being able to decline having their picture taken. The rest of us must have an enhanced driver’s license or passport to fly, and the correct, current and valid photo ID to purchase a firearm.
As I said at the beginning, this case has caused me to rethink my views on firearm rights. I’ve always accepted the noncitizen possession statute as a matter of course, most likely from years of reading and enforcing the provisions on the 4473. Yet when you recognize the rights of the “people” include all people and all “natural rights”, it causes you to take a second look.
Of course, allowing non-citizens to legally purchase or possess firearms is a long way from a done deal. This was just the first ruling from a US District Court judge and there is zero chance our administration will let a ruling with the potential to allow millions and millions of non-citizens to possess firearms become the law of the land without a fight.
Bob
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