Federal gun ban upheld in George Floyd rioting-related case involving noncitizen in Chicago
Federal officials didn't violate the constitution when they enforced a gun ban against an immigrant without legal status from Mexico, the U.S. appeals court in Chicago decided earlier this month.
U.S. District Judge Sharon Johnson Coleman had dismissed an indictment against Heriberto Carbajal-Flores last year when she found the law he was charged with violated the Second Amendment's right to bear arms. But the U.S. 7th Circuit Court of Appeals reversed Coleman's ruling on July 16 and sent the case back to her for reconsideration.
Carbajal-Flores, 33, was arrested by Chicago police officers after he allegedly fired seven shots at a passing car on June 1, 2020, in Little Village during looting related to protests over George Floyd's killing by a police officer in Minnesota.
The gunfire, which apparently didn’t hit anyone, was captured on a Chicago police surveillance camera.
Carbajal-Flores has portrayed himself as a protector of his neighborhood, saying he was merely firing warning shots toward people he believed looted a Little Village store, but federal prosecutors say he fired his weapon indiscriminately and without provocation.
Coleman twice refused to dismiss the case against Carbajal-Flores but ended up throwing it out because of the Supreme Court’s 2022 ruling in a gun-rights case called New York State Rifle & Pistol Association v. Bruen.
Coleman reasoned that under the historical underpinnings of the controversial Bruen decision, Congress may disarm only “untrustworthy or dangerous illegal aliens.” She found Carbajal-Flores was trustworthy because he was employed and didn’t have any felony convictions.
In the Bruen decision, the Supreme Court held that gun laws must be “consistent with the nation’s historical tradition of firearm regulation.” The decision has sparked defense attorneys to file hundreds of constitutional challenges to federal gun charges and convictions.
Most of those challenges have been unsuccessful. Still, judges have struggled with the Bruen ruling. U.S. District Judge Sara Ellis has written that it would “inevitably lead to more gun violence, more dead citizens and more devastated communities.”
In the Carbajal-Flores case, the federal appeals court in Chicago issued an opinion that touched on an array of subjects including English history, the Revolutionary War, slavery and Irish Catholics' loyalty to the pope.
The three-judge panel found that throughout British and U.S. history, governments have disarmed "illegal aliens" unless they “swore an oath of allegiance to the sovereign.” Carbajal-Flores didn’t swear an oath of allegiance because he never became a naturalized U.S. citizen after his mother brought him to Chicago at age 10, the appeals court said.
“The Second Amendment secures for the people a fundamental right,” the appeals court wrote. “The government thus bears the substantial burden of proving that a law limiting the right fits within our nation’s regulatory tradition. That burden has been carried here.”
Carbajal-Flores' attorney, Jacob S. Briskman, said his team was "disappointed with the decision."
"Although not required to do so, Mr. Carbajal-Flores pledged allegiance to the flag every day while attending school in Chicago. As such, he has repeatedly pledged patriotic loyalty to the United States in front of public officials authorized to supervise that pledge. There is therefore every reason to believe this is a constitutionally-acceptable substitute for the colonial-era loyalty pledge," Briskman said in a court filing.
Briskman added, "we're looking at our next steps right now."
Andrew Willinger, a Duke University law professor, said Carbajal-Flores’ case is “a pretty good illustration of how with Bruen you quickly do just get into the historical weeds.”
“One concern about this historical method is that because of the way these cases sort of work their way up, you almost inevitably end up with the appellate courts finding all sorts of facts about what the historical laws were. And that’s typically something that you might think the trial court would be more suited to do through kind of an adversarial process,” Willinger said.
He said he doesn’t envision the U.S. Supreme Court weighing in on the law Carbajal-Flores has challenged because appeals court rulings have already deemed it constitutional.
“Because of the confluence of gun rights and immigration, you see a lot of agreement, even among judges who tend not to agree on Second Amendment issues,” he said.
Contributing: Jon Seidel