Migrants’ gun rights at issue in appeal; U.S. urges reversal of case’s dismissal

The federal government is appealing a judge’s ruling that found the Constitution allows some immigrants without documentation to possess guns, plowing new ground in the quickly evolving debate over Second Amendment rights.

The Justice Department filed its notice of appeal Thursday with Judge Sharon Johnson Coleman, whose ruling last month dismissed charges against an undocumented immigrant who’d been prosecuted for gun possession after he started blasting away at cars driving by him in Chicago’s Little Village neighborhood.

Judge Coleman said that a 2022 Supreme Court case upended away a longstanding federal ban on immigrants who are in the U.S. illegally possessing guns, effectively erasing the case against Heriberto Carbajal-Flores.

She’s the second judge to rule that way, following a similar case last year in Texas. Most judges who have grappled with the issue have come down on the other side, setting up a legal clash that will play out.

The Illinois and Texas cases are now with appeals courts, testing new frontiers in both gun and immigration law.

Pratheepan Gulasekaram, a law professor at the University of Colorado Bounder said it wasn’t surprising the feds appealed.

“It can be a highly impactful ruling and I’m sure the government has a significant interest in wanting to get a ruling that maintains the integrity of the federal firearms regulation system,” he told The Washington Times.

Under existing law, the migrants are one of a series of categories of what’s known as “prohibited purchasers,” or individuals who are not allowed to obtain or possess a gun. Among the other bans are felons, those with intellectual disabilities, drug users and those dishonorably discharged from military service.

But things got complicated two years ago when the justices issued their decision in a case known as Bruen, where they struck down a state law that severely limited who could obtain a concealed-carry permit. In his majority opinion Justice Clarence Thomas wrote that for firearms restrictions to survive Second Amendment scrutiny, they must have been the type of law countenanced at the time Congress wrote and the country ratified the amendment.

Judge Coleman said the key analogy in early history was a bar on British loyalists, and even that was not categorical. They could regain gun rights as long as they swore a loyalty oath, in effect signifying they weren’t untrustworthy or dangerous.

For Mr. Carbajal-Flores, she said she could find no evidence that he was dangerous, and so despite his unlawful presence he isn’t automatically barred.

“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,” she wrote.

Judge Coleman’s ruling only applies to Mr. Carbajal-Flores and doesn’t purport to strike down the law, though that could be the result as his case, and the one in Texas involving Antonio Sing-Ledezma, an immigrant who is in the country illegally, wind through the appeals process.

“What you see in Carbajal-Flores and also Sing-Ledezma, the other case, is a real focus on Bruen’s methodology and the question of gun regulation,” Mr. Gulasekaram said, “It’s not going to treat the regulation of noncitizens differently and it’s arguably a faithful application of Bruen.”

Mr. Carbajel-Flores’ case is just one of a series of gun cases winding their way through the courts in the wake of Bruen.

They cover challenges both to types of weapons and so-called “prohibited purchasers” who, under existing law, are banned from buying or possessing a weapon.

Hunter Biden, son of President Biden, has argued that the prohibition on drug users purchasing guns is unconstitutional, which would negate some charges against him.

And the Supreme Court is currently deciding whether a prohibition on domestic violence suspects is constitutional under Bruen’s framework. Legal experts figure that ruling will shed light on the other challenges.

Indeed, the Sing-Ledezma case out of Texas has been put on hold by a circuit appeals court pending the justices’ decision in the domestic violence case.

Two federal appeals courts, meanwhile, have heard arguments recently in cases challenging California’s ban on high-capacity ammunition magazines and Maryland’s ban on some semiautomatic rifles such as the popular AR-15-style rifle.

The Sing-Ledezma and Carbajal-Flores cases are, for now, outliers. Other courts have revisited undocumented immigrants and guns in the wake of the Bruen ruling and concluded that the categorical bar is still valid.

Those judges have focused less on the Second Amendment and more on the immigrants who are in the U.S. illegally, finding that they are outside the definition of “the people” that the amendment grants the right to bear arms.

That argument resonated with Aidan Johnston, director of federal affairs at Gun Owners of America.

“Illegal aliens, people who are unlawfully president in the United States, are not part of ‘the people,’” he said.

He said Judge Coleman was “anti-gun” and was “willfully misinterpreting” the Supreme Court’s cases to try to upend the Second Amendment.

But Mr. Gulasekaram, whose research focuses on immigrants and constitutional rights, said he can find no basis in the Constitution to say that the Second Amendment wasn’t intended to apply to everyone, including noncitizens here unlawfully.

If the courts were to draw those lines, he said, it would be “quite dangerous” in terms of where the end-point would be and whether immigrants would also be exempt from the right to a jury or the right to remain silent in a criminal proceeding.

“What you’re essentially countenancing is a two-tier constitutional system, one for citizens, one for noncitizens,” he said.