Right to Arms for Illegal Aliens a Red Herring to Distract from Real Issue

by Tommy Grant

“The noncitizen possession statute, 18 U.S.C. § 922(g)(5), violates the Second Amendment as applied to [Heriberto] Carbajal-Flores,” United States District Court for the Northern District of Illinois Eastern Division Judge Sharon Johnson Coleman declared in a March 8 Memorandum Opinion and Order. “Thus, the Court grants Carbajal-Flores’ motion to dismiss.”

The CliffsNotes version: An illegal alien was arrested for possessing a handgun. The government prosecuted him because, per federal law, illegal aliens are “prohibited persons” who, along with all the other disqualifiers listed on the ATF Form 4473 Firearms Transaction Record, are not legally allowed to have a gun.

Still, Johnson Coleman noted, “Carbajal-Flores has never been convicted of a felony, a violent crime, or a crime involving the use of a weapon … contends that he received and used the handgun solely for self-protection and protection of property… has consistently adhered to and fulfilled all the stipulated conditions of his release, is gainfully employed, and has no new arrests or outstanding warrants.”  And she pinned the relevance of that on the Supreme Court’ s Bruen standard, that Founding era text, history, and tradition are the benchmarks by which the constitutionality of a disarmament law must be measured. The closest analog was “formerly ‘untrustworthy’” British loyalists who, based on individual assessments, “were permitted to carry firearms despite the general prohibition” if “determined to be non-violent.”

And while admitting “this Court adopts and incorporates the reasoning of those opinions as to the finding that Section 922(g)(5) is facially constitutional,” Johnson Coleman concluded “this Court finds that, as applied to Carbajal-Flores, Section 922(g)(5) is unconstitutional.”


The government will surely challenge an order that undermines its entire “gun control” regulatory scheme. In the meantime, the Second Amendment community has erupted in a schism, with some gun owners insisting illegal aliens have no rights, and others arguing back that rights are unalienable, or as the Founders eloquently put it in the Declaration of Independence, “endowed by our Creator.”

 “Why shouldn’t gun owners across the state cut up our FOID cards and be able to buy guns out of state with no worry?” Illinois State Rep. Dan Caulkins asked. “If a person who is not legally in this state can have his constitutional rights, so can the rest of us.”

He’s got a point. Carbajal-Flores didn’t get the state-required Firearms Owner Identification Card. Nor did he obtain his gun “legally,” or go through a background check. If he can do it, why can’t a citizen claim “equal protection”? And yes, of course the FOID is an infringement.


So, what other state and federal laws are fair game? Recall that unlikely Second Amendment “champion” Hunter Biden is counting on the Bruen standard to render his lying about controlled substance abuse in order to obtain a firearm “constitutionally irrelevant,” a self-preservation move that could upend the Democrat agenda on guns.

Adding to the momentum is “a first-of-its-kind ruling in Louisville [where] a judge determined that a convicted felon can’t be prosecuted on a firearms charge because it violates his Second Amendment rights.”

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The “enforce exiting gun laws” faction of gun owners are the loudest objectors, evidently unaware that their position is ideologically no different than a Revolutionary era colonial demanding to enforce exiting Intolerable Acts. The hard truths no one wants to admit are that “gun control” laws don’t work – whether they’re favored by Everytown or by NRA, and that anyone who can’t be trusted with a gun can’t be trusted without a custodian.

It’s not a matter of “Should felons have guns?” That’s the wrong question. Try “Should those proven violent and predatory have access to the rest of us?”

Ditto with “Should illegal aliens have guns?”

Of course, all human beings are entitled to unalienable rights. And the Supreme Court has acknowledged, in the Heller case, and earlier, in Cruikshank, “The very text of the Second Amendment implicitly recognizes the pre-existence of the right and declares only that it ‘shall not be infringed.’ As we said in United States v. Cruikshank… ‘[t]his is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence.’”

But again, it’s the wrong question. What should be asked is “Why is a known illegal alien allowed to remain in the United States instead of being deported?”

It’s fair to suspect Obama appointee Johnson Coleman’s ruling is a red herring to divert focus from the real issue, and a deliberate attempt to stir up outrage against the potential implications of the Bruen standard from the gun community itself.

A column in The Hill estimates 10 million illegal aliens have crossed the border since Joe Biden assumed the Oval Office. And as Tucker Carlson calculated two years ago, “There could easily be 30 million (or more) illegal immigrants living in this country. That’s more people than live in the entire state of Texas.”

As this article is being written, the New York Post notes there are “Thousands of migrants set to arrive in massive, El Paso-bound caravan in just a few days,” no doubt emboldened by the over 100 that “rush[ed] a border wall … breaking through razor wire and knocking over guards in the process.”

At this writing, more, including an inordinate number of military-aged males of not just Mexican or Central American origin, but from China, and from hostile Islamic states, are adding to their unvetted numbers already here while our government, consented to under the premise that it would “establish Justice, insure domestic Tranquility, provide for the common defense, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity,” offers the lawbreakers incentives and rewards to embed themselves (and increase political power through apportionment) throughout the Republic.

It’s hardly unreasonable to conclude the “newcomers” (we aren’t supposed to call them “illegals” anymore) represent the equivalent of a standing foreign army, many with agendas directed by brutal criminal cartels and by bellicose powers like China, Russia, and Iran.

The Framers never intended to protect the right of invaders to keep and bear arms, but again, that’s the wrong issue. We need to instead ask ourselves “Who does it benefit to have Second Amendment advocates arguing over acceptable infringements while they ignore the damn elephant in the room?”

About the Author

David Codrea is the winner of multiple journalist awards for investigating / defending the RKBA and a long-time gun owner rights advocate who defiantly challenges the folly of citizen disarmament. In addition to being a regular featured contributor for Firearms News and AmmoLand Shooting Sports News, he blogs at “The War on Guns: Notes from the Resistance,” and posts onTwitter: @dcodrea and Facebook.

If you have any thoughts or comments on this article, we’d love to hear them. Email us at [email protected].

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