Abstract

Excerpted From: Alan Mygatt-Tauber, The Second Amendment Rights of Undocumented Immigrants, 104 Nebraska Law Review 729 (2026) (386 Footnotes) (Full Document)

Heriberto Carbajal-Flores moved to Chicago in 2002. In June 2020, tensions were running high around the country after the murder of George Floyd by police officer Derek Chauvin. After witnessing several young men attacking a store in the Little Village neighborhood of Chicago, where Carbajal-Flores lived, he joined an impromptu neighborhood watch. At some point on the evening of June, 2020, according to Carbajal-Flores, someone handed him a handgun to allow him to protect himself and the store. Carbajal-Flores had not entered the United States in accordance with the immigration laws. As such, the police arrested him later that evening for firing that gun at a moving vehicle and charged him with violating U.S.C. § 922(g)(5)(a), which prohibits the possession of a firearm by an undocumented immigrant. Prior to this run-in with the authorities, Carbajal-Flores lived an uneventful life. As the federal district court observed in a 2024 opinion related to his case, he had no felony convictions on his record. Furthermore, he consistently followed all stipulated conditions of his release from pre-trial detention, maintained gainful employment, and provided necessary documentation to verify income when requested to do so.

Indeed, he remained on his best behavior and was not arrested for other crimes or had any outstanding warrants in the nearly four years following his arrest. In response to his arrest, Carbajal-Flores challenged the constitutionality of U.S.C. § 922(g)(5)(a), arguing that this federal criminal statute violated the Second Amendment. The court initially denied a motion to dismiss in April 2022, and it did so again in December 2022 following the Supreme Court’s decision in New York State Rifle & Pistol Association v. Bruen. However, Carbajal-Flores persisted, renewing his challenge after the Third and Seventh Circuits issued opinions clarifying the Bruen rule. After considering guidance provided by the Seventh Circuit in Atkinson v. Garland, which addressed the constitutionality of the felon firearm prohibition in U.S.C. § 922(g)(1), the district court determined that § 922(g)(5)(a) violated the Second Amendment as interpreted by the Supreme Court in Bruen. Ever since the Supreme Court decided Bruen in 2022, lower courts have been wrestling with how to apply its “istory and tradition test” in a litany of challenges to state and federal firearms regulations. In the context of the specific federal statutory prohibition on undocumented immigrants possessing firearms, lower courts have split.

While most have found the law to be constitutional, others have held that it is unconstitutional under the rule established in Bruen. Scholars have also wrestled with the meaning of the Bruen test regarding the constitutionality of § 922(g)(5)(a), particularly in furtherance of an ongoing debate in the literature about the Second Amendment’s application to noncitizens that was first raised in the wake of the Supreme Court’s 2008 decision in District of Columbia v. Heller. Most of this debate focuses on the meaning of the term “the people” in the Second Amendment, which situates it in a larger debate about who is a part of the American community. To this ongoing debate, this Article makes two contributions. First, unlike those articles which focus solely on the question of whether undocumented immigrants are protected by the Second Amendment--i.e., whether they are part of “the people”-this Article offers an examination of whether there are any historical analogues that justify § 922(g)(5)(a) ’ s restrictions on undocumented immigrants possessing firearms. Thus, this Article provides the first complete scholarly analysis of § 922(g)(5)(a) ’ s constitutionality under Bruen ’ s framework. Second, and perhaps more importantly, this Article suggests that a noncitizen’s status bears little weight in the debate.

The central focus is that lawful status is irrelevant to the question of a noncitizen’s rights under the Second Amendment. For nearly a century and a half, the Supreme Court has consistently focused on territorial presence, rather than status, as the touchstone of constitutional rights. When interpreting the reach of the First, Fourth, Fifth, Sixth, and Fourteenth Amendments, the Court has consistently extended rights to those who are physically present in the United States, even if they have entered (or remained) unlawfully. Nothing in the Second Amendment counsels toward changing this view. This Article argues that undocumented immigrants are entitled to the protection of the Second Amendment under Bruen ’ s two-part test. First, as other scholars have persuasively argued, undocumented immigrants in the United States are a part of “the people” who have access to Second Amendment rights. Second, there are no historical analogues that would justify the flat ban on possession of firearms for all undocumented immigrants. At best, there may be support for disarming those undocumented immigrants who pose a specific danger to society.

This Article begins with an examination of the Supreme Court’s pronouncements on the meaning of the Second Amendment in Heller and Bruen, and the two-part test, focused on history and tradition, that the latter case created. Next, the Article parses the cases that have examined the constitutionality of § 922(g)(5)(a) in the wake of Bruen. Notably, neither Heller nor Bruen answered two key questions: first, whether undocumented immigrants are entitled to Second Amendment protections, and if so, whether there is a sufficient history and tradition of gun regulation to justify § 922(g)(5)(a) ’ s complete ban on their possession of firearms.

Part III inquires whether undocumented immigrants are protected by the Second Amendment and concludes that they are. This inquiry involves answering three questions. The first of these asks what conduct should be examined under step one of the Bruen test and if conduct is the appropriate limit. Since § 922(g)(5)(a) bans possession, this Article concludes that it strikes at the heart of the Second Amendment. This leads to a second question: are undocumented immigrants part of “the people” protected by the Second and other amendments? The answer to this question is yes. First, this term is used consistently throughout the Bill of Rights and, contrary to dicta in Heller and Bruen, reaches more than merely “law-abiding citizens.” A part of this discussion draws on Ahkil Amar’s idea of intra-textualism to explain why the term “the people” can have a consistent meaning within the Bill of Rights, while differing in meaning in the Preamble or Article I. The history of the Court’s application of the Constitution to immigrants, both documented and not, in the United States shows that they have been extended the protections of the Bill of Rights, including those which protect “the people.” Nothing in Heller or Bruen changes this long-held understanding. The final question is related to the various classifications that have been used to group undocumented immigrants. Specifically, should this inquiry rely on the Supreme Court’s 1990 decision in United States v. Verdugo-Urquidez, which held that only immigrants with “substantial connections” to the United States are among “the people” This classification should not apply to exclude certain undocumented immigrants from the protections offered by the Second Amendment. Finally,

Part IV examines step two of the Bruen test, arguing that none of the proffered historical analogues to § 922(g)(5)(a) are sufficient to save it. Regardless of whether armed undocumented immigrants are viewed as a long-standing social problem known to the Founders or instead represent a new phenomenon, none of our nation’s early laws serve to justify a blanket ban on possession. This Article examines several federal laws that operated to disarm certain categories of people, including those who would not swear loyalty to the United States, those who refused to abide by legal norms, and Catholics, in addition to laws that prohibited the sale of arms to Native Americans. Based on the Court’s analysis in Bruen, none of these laws provide an adequate basis to uphold § 922(g)(5)(a). Finally, even if these laws would support disarmament of some undocumented immigrants, they required an individual assessment of the dangerousness of the person sought to be disarmed, rather than a class-based blanket prohibition on possession. However, § 922(g)(5)(a) does not include this requirement. Therefore, it must be struck down as unconstitutional.

[ . . . ]

Loyalists could retain their arms if they swore an oath of fealty to the United States. Catholics in the colonies could likewise be re-armed, if they swore an oath to the Hanoverian Dynasty. In England and Virginia, even Catholics who did not swear such an oath were entitled to keep firearms for defense of hearth and home. Turning to another group that posed a specific danger to the early inhabitants of America, most laws dealing with Native Americans prohibited sales of weapons and powder to the natives by white colonists. They did not disarm the Native Americans themselves. Both Bruen and Rahimi have instructed that the use of differing means to address similar problems is an indication that the more recent innovations may be unconstitutional. All of this leads to one conclusion: if undocumented immigrants are to be disarmed, there needs to be an individualized finding of dangerousness on the part of the individual. Blanket prohibitions on arms *793 ownership fly in the face of a long-standing historical tradition respecting the right of all to possess firearms for self-defense. But this is precisely what § 922(g)(5)(a) calls for. No undocumented immigrant, no matter how long they have lived here, how they arrived, and how many citizens are in their immediate family, may possess a firearm. According to the Supreme Court, this is not something the federal government has the power to do. Therefore, courts addressing the constitutionality of § 922(g)(5)(a) should strike it down under Bruen.

Alan Mygatt-Tauber is an Adjunct Professor and Affiliated Scholar at the Seattle University School of Law.