Judge: Unlawful Migrants Have Right to Bear Arms

Handgun with ammo on U.S. Constitution
Handgun with ammo on U.S. Constitution | Image by Stephanie Frey/Shutterstock

A Democrat-appointed federal judge has determined that unlawful migrants enjoy the same right to own guns as U.S. citizens do, even as the Biden administration seeks ways to limit the right of American nationals to carry firearms.

In a case that involved a federal charge against an unlawful migrant for illegal possession of a firearm, Judge Sharon Johnson of the Northern Illinois U.S. District Court ruled on Friday that the federal law prohibiting unlawful migrants from owning firearms was unconstitutional based on the landmark Supreme Court decision in New York State Rifle and Pistol Association v. Bruen (2022).

In Bruen, the court ruled that a New York law requiring those who wished to keep and bear arms to demonstrate a special need to do so was invalid, as gun regulations are only constitutional if they are rooted in U.S. history.

Ruling in favor of defendant Heriberto Carbajal-Flores, an unlawful migrant, Johnson stated that the law fails Bruen‘s “text-and-history” test for constitutionality. Furthermore, the judge reasoned that Carbajal-Flores did not have a violent felony record, nor did his arrest involve violence, a circumstance for which historical precedence does exist.

However, critics of the ruling point out that unlawful migrants break the law by entering the country illegally and thus should not be able to avail themselves of the same rights that the Constitution guarantees for citizens.

The constitutional right to bear arms belonging to “the People” cannot include new unlawfully arrived persons, wrote Konstadinos Moros on The Reload.

The ruling widens the scope of unlawful migrants’ rights under the Constitution. Meanwhile, the courts and Biden’s DOJ actively seek to curtail the right of legal citizens to bear arms in the name of public safety: Last year, the DOJ went to court to strip a man of his right to own a gun based on a non-violent offense. In that case, the petitioner pleaded guilty in 1995 to making a false statement about his income to obtain food stamps. In January, the Third Circuit upheld his Second Amendment right.

Currently, the Supreme Court is expected to decide whether a federal law prohibiting possession of firearms by persons subject to a domestic dispute restraining order is constitutional in a case arising out of Texas, United States v. Rahimi.

“Nearly 30 years ago, Congress determined that a person who is subject to a court order that restrains him or her from threatening an intimate partner or child cannot lawfully possess a firearm. Whether analyzed through the lens of Supreme Court precedent, or of the text, history, and tradition of the Second Amendment, that statute is constitutional,” Attorney General Merrick Garland said in a February 2023 statement explaining the DOJ’s stance on the Rahimi case.

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