In Bruen, the Supreme Court established a framework for analyzing whether a challenged firearm regulation violates the Second Amendment. First, Bruen instructs courts to determine whether the Second Amendment’s plain text covers an individual’s conduct.
If it does, the conduct is “presumptively protect[ed],” and the government bears the burden of demonstrating that the
challenged regulation “is consistent with the Nation’s historical tradition of firearm regulation.” Id. at 2129–30.
This Court previously held that (1) Carbajal-Flores’ conduct is covered by the plain text of the Second Amendment. See United States v. Carbajal-Flores, No. 20-CR-00613, 2022 WL 17752395, at *3 (N.D. Ill. Dec. 19, 2022) (Coleman, J.). Nothing has occurred that would cause the Court to depart from its prior ruling.
Although the Second Amendment’s plain text presumptively protects firearms possession by undocumented persons, that does not end the analysis. Under Bruen, if the government can show that the felon dispossession statute is part of this country’s historical tradition of firearm regulation, then the statute survives. 142 S. Ct. at 2126, 2130. Thus, the Court will re-analyze the historical tradition with Atkinson’s guidance.
The government argues that the historical record establishes that legislatures categorically disarmed (1) individuals who were not members of the political community and (2) individuals who threatened the social order through their untrustworthy adherence to the rule of law. This Court recently issued opinions guided by Atkinson on identical Section 922(g)(1) challenges that discussed the government’s position regarding the “untrustworthy adherents to the law” historical analogue.
See United States of America v. Dionte Vaughns, No. 22-CR-00636, 2023 WL 8258575 (N.D. Ill. Nov. 29, 2023) (Coleman, J.); United States of America v. Tyriiq Washington, No. 23-CR-00274, 2023 WL 8258654 (N.D. Ill. Nov. 29, 2023) (Coleman, J.); United States of America v. Darrell Griffin, No. 21-CR-00693, 2023 WL 8281564 (N.D. Ill. Nov. 30, 2023) (Coleman, J.). Because the government’s arguments are identical in this case, this Court adopts and incorporates the reasoning of those opinions as to the finding that Section 922(g)(5) is facially constitutional.1 The Court now turns to Carbajal Flores’ as-applied challenge to Section 922(g)(5)’s constitutionality.
This Court found that the British loyalist example in the “untrustworthy adherents to the law” historical analogue contained an exception allowing British loyalists to sign loyalty oaths. Griffin, 2023 WL 8281564, at *8-9. This exception necessarily requires an individualized assessment to determine if the former British loyalist is so “untrustworthy” or “dangerous” that they should be barred from possessing a weapon. Id. The Court also determined that based on the government’s historical analogue, where exceptions were made that allowed formerly “untrustworthy” British loyalists to possess weapons, the individuals who fell within the exception were determined to be non-violent during their individual assessments, permitting them to carry firearms. Id.
While the analysis in Griffin was in the context of felons in possession of firearms, the Court finds that the identical government arguments and analogies are equally applicable to noncitizens unlawfully present in the country. Thus, to the extent the exception shows that some British loyalists were permitted to carry firearms despite the general prohibition, the Court interprets this history as supporting an individualized assessment for Section 922(g)(5) as this Court previously found with Section 922(g)(1). Id.
The government argues that Carbajal-Flores is a noncitizen who is unlawfully present in this country. The Court notes, however, that Carbajal-Flores has never been convicted of a felony, a violent crime, or a crime involving the use of a weapon. Even in the present 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. Additionally, Pretrial Service has confirmed that Carbajal-Flores has consistently adhered to and fulfilled all the stipulated conditions of his release, is gainfully employed, and has no new arrests or outstanding warrants.
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.
Conclusion
The noncitizen possession statute, 18 U.S.C. § 922(g)(5), violates the Second Amendment as applied to Carbajal-Flores. Thus, the Court grants Carbajal-Flores’ motion to dismiss [83].
