A Right to Self-Defense But Not With Guns? The Confusing Case of Heriberto Carbajal-Flores

To most of us, the plain text of the Second Amendment seems straightforward. But colloquial English and legal English are not the same.

Several things are commonly understood by people familiar with the Second Amendment. For example, the right to keep and bear arms is an individual right, made very clear in the 2008 Heller decision. It also falls into the category of core fundamental rights, commonly called “God-given” or natural rights. As stated in the Declaration of Independence, we believe “that all men are created equal, that they are endowed by their Creator with certain unalienable Rights…”. If this is the case, then those rights must certainly transcend citizenship.

In 2020, there was a case that shed light on this very question. The case is about a man by the name of Heriberto Carbajal-Flores. Carbajal-Flores is an illegal alien who resided in Chicago, Ill. He was charged under 18 U.S.C. § 922(g)(5)(A) with unlawful possession of a firearm when he shot at a car in alleged self-defense. He believed the driver was about to hit him with the vehicle. Carbajal-Flores claimed he acquired the firearm for his personal protection during a time of unprecedented civil unrest in the wake of the George Floyd so-called “protests.” Important to note here is the fact that the unlawful possession was his only charge. Carbajal-Flores was not charged with assault or even an unlawful discharge of a firearm, giving strength to his claim of self-defense.

Initially, the court denied his motion to dismiss the indictment, citing precedent upholding the statute’s constitutionality. However, the legal battle took a significant turn following the Supreme Court’s 2022 decision in New York State Rifle & Pistol Association v. Bruen, which emphasized historical traditions of firearm regulation. Post-Bruen, Carbajal-Flores renewed his motion.

In March 2024, Judge Sharon Coleman ruled that § 922(g)(5) was unconstitutional as applied to Carbajal-Flores. The court found that his conduct — possessing a firearm for self-defense during civil unrest — fell within the Second Amendment’s protections. Furthermore, there was no evidence he posed a threat to public safety. The ruling was influenced by historical analogues, such as British loyalists being allowed to possess firearms if they pledged loyalty as an indicator that they posed no threat to the new country, suggesting that individualized assessments are necessary.

This decision marked a significant shift in interpreting firearm possession laws for illegal aliens, potentially setting a precedent for future cases.

Undocumented Immigrants Have Right to Own Guns, Judge Rules – Newsweek

A gun charge filed during the George Floyd rioting in Chicago is dismissed amid controversy – Chicago Sun-Times

It is well known that Illinois, as a whole, and Chicago in particular, are quite hostile towards gun ownership. How did this dismissal happen?

The 2024 ruling found that under New York State Rifle & Pistol Association v. Bruen, laws must align with historical tradition. Judge Coleman found no historical analogue for categorically disarming non-violent illegal aliens. The court compared the U.S. practice of disarming British loyalists — people who fought for or supported the British during the War of Independence and chose to stay in America — after the war, noting an individualized approach was used — loyalty oaths and safety assessments — rather than a wholesale ban.

In line with Atkinson v. Garland, Coleman emphasized evaluating risk individually. Since Carbajal-Flores had no felony record, no weapon offense, stable employment, and compliance with release conditions, his Second Amendment right couldn’t be denied without specific findings of unfitness or danger.

Who are the people? At the time of our founding, they were British, becoming Americans. After the Revolution, loyalists living in the territory of the 13 colonies were included in that group. As were all the other people from various countries living in the colonies, apart from slaves and Native Americans.

Throughout the Constitution and the Bill of Rights, as well as in other texts, we can see a distinction between “persons,” meaning everybody, “citizens,” — a group with a strict definition, and the people — a group that falls somewhere in between.

In the constitutional context, the people generally refers to individual members of the political community of the United States.

This interpretation is supported by:

1. Textual Consistency Across the Bill of Rights:
   • The phrase “the people” appears several times in the Bill of Rights — such as in the First Amendment (freedom of speech), Fourth Amendment (protection from unreasonable searches), and Ninth and Tenth Amendments.
   • In each of these, courts have interpreted the people to mean individual rights holders, not just collective entities like militias or state governments.
2. Supreme Court Interpretation:
   • Consistent with the usage in other constitutional contexts, Justice Scalia gave us a solid majority opinion. In the landmark case District of Columbia v. Heller, the Supreme Court held that the Second Amendment protects an individual’s right to possess firearms, unconnected with service in a militia, and to use them for traditionally lawful purposes, such as self-defense within the home.
3. Historical and Linguistic Evidence:
   • Historical records from the Founding Era suggest that the framers intended the people to have rights that served as a check on government power — something that makes more sense if those rights are held individually.

In the Second Amendment, “the people” refers to individuals — not just members of organized militias or the state itself. In this context, it is even irrelevant to ask if one has to be a citizen to serve in the militia, since militia service itself is irrelevant for the exercise of the right to keep and bear arms. The right that is protected is thus considered an individual right. This is clear and not contested.

There is another distinction that is sometimes made, and it’s worth exploring — the “political community.” This term comes from the Heller case, where Justice Scalia wrote in his majority opinion: “the term unambiguously refers to all members of the political community, not an unspecified subset.” This is probably the clearest definition we have to date of what this term means. However, it is still far from an unambiguous definition. Who does it refer to? Voters? Would that mean people who are eligible to vote but choose not to aren’t part of it? What level of involvement qualifies to be a member? Activists are part of the political community, but plenty of activists aren’t citizens. It becomes even more complicated if we consider that before 1920, women, while certainly being considered citizens, did not have the right to vote, bringing into question whether that metric could even be used to define membership in the political community.

Are some rights reserved for citizens only? Yes, in the United States, there are some constitutionally protected rights that apply to all people, including non-citizens, and some that are reserved specifically for U.S. citizens. Many countries have those distinctions in their respective constitutions. Here’s an overview:

The U.S. Constitution and Bill of Rights protect several fundamental rights that apply to everyone within U.S. territory, regardless of citizenship status. These rights are considered universal protections.

1. The First Amendment protects the right to free speech, assembly, and religion for all people, not just citizens. This includes the right to protest and express opinions, even for non-citizens. It also includes the right of all individuals (not just citizens) to petition the government for redress of grievances, such as filing complaints or requesting actions from government agencies.
2. The Fourth Amendment protects all individuals in the U.S., including non-citizens, against unreasonable searches and seizures by the government.
3. The Fifth Amendment guarantees due process rights, ensuring that no one — citizen or non-citizen — can be deprived of life, liberty, or property without fair legal procedures.
4. The Eighth Amendment’s prohibition against cruel and unusual punishment applies to all people in the U.S., not just citizens.
5. Non-citizens are also typically entitled to the rights provided by the Sixth Amendment, including the right to a fair and public trial, the right to counsel, and the right to confront witnesses in criminal cases.

In this context, I think it is worth noting something that is specifically relevant in light of the current political climate: While non-citizens and even illegal aliens do have fairly robust due process rights, deportations are not criminal but civil matters, and thus, the rights they have in criminal proceedings have largely not been extended to matters related to deportations. Several cases exist to strengthen this argument:

• Almeida-Sanchez v. United States, 413 U.S. 266 (1973)
• Reno v. Flores, 507 U.S. 292 (1993)
• United States v. Padilla, 508 U.S. 77 (1993)

Some rights and privileges are reserved specifically for U.S. citizens, and non-citizens do not have access to them. These include:

1. Only U.S. citizens are allowed to vote in federal elections. Non-citizens (including lawful permanent residents) are excluded from the voting process. (Right to Vote 14th, 15th, 19th, 24th, and 26th Amendments)
2. U.S. citizens are the only individuals who can run for federal office (e.g., President, U.S. Senator, or U.S. Representative). (Article I, Section 2 and Article II, Section 1)
3. U.S. citizens cannot be deported, but non-citizens (even lawful permanent residents) can be deported under certain circumstances, such as committing a serious crime (8 U.S.C. 1227).

Universal rights: equal protection, free speech, due process, protection from unreasonable searches, and the prohibition on cruel and unusual punishment apply to everyone, regardless of citizenship, whereas citizen-specific rights: voting, running for office, holding certain government jobs, and the ability to apply for a passport are rights limited to U.S. citizens.

This distinction reflects the broader idea that while the Constitution protects many fundamental freedoms for all people in the U.S., certain rights are tied specifically to citizenship.

Which category does the Second Amendment fall into? Had you asked this question in 2020, most people would have agreed that it was a citizen’s right. Especially considering Carbajal-Flores’ status, not only as a foreigner but, worse, an illegal immigrant. The Second Amendment, however, does apply to lawful permanent residents (green card holders).

At least some non-citizens have the right to keep and bear arms. The implications for the Second Amendment arising from this case could become a judicial milestone, as it may end the wholesale ban on entire classes of people and render the status of prohibited persons an individual assessment.

The case took another turn when the U.S. Seventh Circuit Court of Appeals reversed the lower court’s ruling. Ironically, they used the court’s own argument. Judge Coleman used the historic precedent that individual British loyalists were allowed to keep and bear arms after the Revolution if they swore loyalty to the United States. This is precisely what Carbajal-Flores had not done, since he was an illegal immigrant, the Seventh Circuit reasoned.

The court concluded in its July 16th, 2025 decision that the statute is constitutional both on its face and as applied to Carbajal-Flores, reversing the district court’s decision and remanding the case for further proceedings while avoiding the question of: Who are The People? It remains to be seen if this case has created a precedent that will change the future of Second Amendment legislation and jurisprudence and the definition of prohibited persons.

Any change to the category of prohibited persons would surely have an avalanche of consequences in the area of concealed carry permits, and the practical implications would be complicated, to put it mildly. For example, federal background checks required during every transfer would flag an individual as an unlawful immigrant. Regardless, the Supreme Court is unlikely to rule favourably if it ever saw this case, given that the defendant came into this case as an illegal alien. The current composition of the court is generally seen as pro-Second Amendment, but it does not look at criminal defendants with the same level of favor. The chances of this case being decided in a way that promotes Second Amendment causes are doubtful, if not unlikely.

Ultimately a moral, if not legal argument that is very relevant has to be this: While Heller confirmed that the Second Amendment undoubtedly enshrines not only the right to keep and bear arms but also the right to self-defense – something that is also established by every state’s common law – one has to wonder why the most perfect tool ever invented to fulfill exercising that right, apparently is not a part of it.