As readers who pay attention to news related to guns and constitutional law will likely know, Heriberto Carbajal-Flores, an undocumented migrant in the United States, had firearms possession charges against him dismissed on grounds that the Second Amendment protects an individual’s right to have weapons for personal defense, regardless of one’s immigration status. Carbajal-Flores had no other charges against him and was held by the court as posing no “risk to public safety,” thereby showing no reason why he should be disarmed.
This was a federal case, and I have to wonder if Illinois will pursue their own charges against Carbajal-Flores since he presumably did not have a Firearm Owner’s Identification required for residents of the state to be legally in possession of guns or ammunition. Previous charges had been dropped due to the federal prosecution. The dismissed charges arose after he was arrested in what he claimed were acts in defense of his neighborhood during violence following the death of George Floyd, but as Judge Sharon Coleman pointed out, Carbajal-Flores has never been convicted of a felony and that under the 2022 Bruen ruling, she could see no sufficient basis in law to deny him gun rights.
It is worth noting that entry into the United States without proper documentation is a misdemeanor. Carbajal-Flores came to this country as a ten-year-old child with his mother, and I must leave to immigration attorneys the question of whether or not he even violated the law by being brought here as a minor. He has had some interaction with the police since moving here on charges of throwing gang signs and affiliation with a gang, charges that sound to me like the sort of thing law enforcement comes up with when they cannot cook up any overt act to attach to someone whom they wish to arrest. His actions, however, for the most part have been those of a migrant hoping to integrate into this nation, including his participation in a neighborhood watch after a break-in at a local tire store in the days before his arrest.
In this, he is in line with undocumented immigrants generally who have been shown to commit crimes of all types—violent, drug-related, property—at a much lower rate than U.S. citizens. This is only logical. However much we might wish to contemplate the image of the noble immigrant who believes in America and only yearns to follow our laws, there is no need for that narrative, no matter how true it may be. People who are here without papers will want to draw as little attention to themselves as possible. Human beings are often not consistently logical, to be sure, but the desire not to be detained for an extended period and then deported as opposed to making a life here and eventually bringing one’s family in has to be a significant influence on a person’s behavior.
I speak as someone who supports a far more open immigration policy, so take what I write here in that context. That being said, I must go on to explain that I agree with the outcome here, but not with the reasoning by which the court reached its decision.
The problem that I have is in the text ultimately being appealed to, the Second Amendment. That and the other parts of the Bill of Rights make reference repeatedly to “the people” as the entities in possession of the rights in question. It is a part of the general document, the Constitution, that is the basic law of this specific country and is a social agreement among the actual participants therein. Carbajal-Flores wishes to join us, and with the information that I have at present, I welcome him to do so. But I cannot see how he is protected in this case by the Second Amendment, given the fact that he is not yet a member of the people.
I did say, though, that I agree with the outcome of the case. This is because I see rights as something that belong to everyone, regardless of citizenship or location. No, the right to have a Glock in a pocket holster, say, was not handed down by God in the Garden of Eden. What I mean is that the right to defend one’s person against violent attacks is an individual human right that all governments ought to acknowledge and respect.
The way we should protect that right for non-citizens is through our status as a member of the United Nations and our vote in favor of the Universal Declaration of Human Rights and similar resolutions that affirm a basic right to be secure in one’s person. The Second Amendment is in keeping with this concept, so Carbajal-Flores’s right to possess personal weapons for his defense ought to be recognized, but we should do so in a way that is consistent with his immigration status and that asserts to the world our position on what personal security actually means.
The right wing will call me a globalist for this stance, and much joy may it give them.
I'm not sure I agree about Mr. Carbajal-Flores not being "a member of the people," at least when it comes to considerations of the Bill of Rights. The BoR enumerates a bunch of rights that are possessed by "the people," and the logical upshot of saying that undocumented (im)migrants are "not members of the people" is that they also don't possess the right to freedom of expression, to assemble peaceably and petition the government for redress of grievances, to be secure against unreasonable search and seizure, etc. And that last one in particular opens a very unpleasant can of worms, because if a precedent were to be set that undocumented migrants are not secure against unreasonable search and seizure, we open the door to police being able to detain and search people at will in the pretext that they had a good faith (yeah, right) reasonable suspicion (yeah, right) that the person in question was an undocumented immigrant. Given the degree to which the Fourth Amendment has already been eroded, with evidence being deemed admissible despite having been obtained through gross violations of civil rights (and don't even get me started on "qualified immunity"), that idea makes me decidedly nervous.