Carbajal-Flores v US - Undocumented immigrant in possession

[mab22]

On 3/26/2024 at 4:47 PM, Euler said:

Long answer:
By the Rules of Appellate Procedure, the government has 30 days to file an intent to appeal, which is not an appeal itself. 30 days from March 8 (the date of the decision) is April 7, which is a Sunday, so the real deadline is April 5. The government can also ask for an extension to file notice up to another 30 days. Filing the notice to appeal gives it another 60 days to file the actual appeal, although the government can ask for an extension of that up to 180 days. That may seem like a pretty slow process, but this case has been going since September 2020.

Short answer:
The government is going to have to file something by April 5 if it intends to do anything. "Something" won't necessarily be the appeal itself.

Meanwhile in my inbox today:

Um, no. The federal district court didn't say anything about a FOID. It ruled on part of the Gun Control Act of 1968.

It might have legal implications on the FOID, but we actually need to go down that road to go down that road.

Correct me if I am wrong,

This ruling "applies to the individual", not everyone is what I hear. I don't know that we can even go to a federal court and point to or cite this case.

I would bet our challenge gets thrown out as "we are citizens, they are not, go pound sand plebs!"
We also need to see if the state appeals and what the result of the appeal is, even then I would put money on your a citizen they are not, you loose go ______ !

I F  A N Y T H I N G were to be challenged I would suspect that it would have to be FOID and the CCL, and PICA and the whole system they have in place. I would hope the groups would challenge EVERYTHING and not just FOID.

 

Either way don't get your hopes up folks, history has shown us the level of corruption we live with.

 

 

 

[mikew]

Long, rambling discussion in the Sun-Times:

https://chicago.suntimes.com/the-watchdogs/2024/03/29/bruen-supreme-court-operation-legend-heriberto-carbajal-flores-george-floyd

 

Gulasekaram says Coleman’s ruling means other non-citizens without violent backgrounds could successfully challenge their gun prosecutions.

 

Willinger doubts Coleman’s reasoning will catch on, though, because of the burden that case-by-case assessments would create.

 

Ellis, one of the judges who found the felon-in-possession law unconstitutional, identified a separate problem in her order last month. She said the Bruen ruling itself thrusts judges into a new role, one that she said she felt ill-suited to fill, that of "playing historian.”

[Upholder]

On 3/29/2024 at 9:37 AM, mikew said:

She said the Bruen ruling itself thrusts judges into a new role, one that she said she felt ill-suited to fill, that of "playing historian.”

 

That is literally the job of judges, to look at the laws, how/when they were written and then interpret what the parties who wrote it meant and how it applies to the situation in front of the court.

 

A simple contract case is treated exactly the same, although the time frame is usually shorter.

[Euler]

On April 4, the US filed its intent to appeal.

On April 5, CA7 assigned case number 24-1534. (The docket is not yet available.)

[Euler]

The CA7 docket is available.

[mab22]

The real question is, will they ACTUALLY TRY, or will they just "pretend" to fight the ruling?

 

Also,

Any odds on the government winning or loosing?

 

I would put money on the defendant winning in some contorted logic that only applies to non citizens.  Citizens will need permits for everything, and still can't own semi automatic rifles or shotguns, illegal aliens on the other hand can own Nukes, ICBM's, full auto, etc.

 

[2A4Cook]

On 3/29/2024 at 11:53 AM, Upholder said:

 

That is literally the job of judges, to look at the laws, how/when they were written and then interpret what the parties who wrote it meant and how it applies to the situation in front of the court.

 

A simple contract case is treated exactly the same, although the time frame is usually shorter.

That, and the fact that traditionally the majority of lawyers were usually history majors in undergrad.

[davel501]

On 4/9/2024 at 5:55 PM, 2A4Cook said:

That, and the fact that traditionally the majority of lawyers were usually history majors in undergrad.

 

Most of the lawyers I knew in college were political science majors.

[Euler]

I saw some statistics a few years ago that said most applicants to law school were political "science" majors.

The major with the highest proportion of acceptance was physics.

Based on a single data point, the highest proportion of lawyers who move on to picking locks were physics undergrads.

[SiliconSorcerer]

On 4/9/2024 at 6:50 PM, Euler said:

I saw some statistics a few years ago that said most applicants to law school were political "science" majors.

The major with the highest proportion of acceptance was physics.

Based on a single data point, the highest proportion of lawyers who move on to picking locks were physics undergrads.

The best minor to get with a physics degree is Spanish.

quieres papas fritas con esa hamburguesa?

[bmyers]

 

[Euler]

On May 6, the government asked for an extension.

On May 7, the court granted the extension, giving the government until 6/14 to file its brief.

On June 7, the government again asked for an extension.

On June 10, the court granted the extension and set the following schedule:

7/15: government's brief due
8/14: defendant's response due
9/4: government's reply, if any, due

[Euler]

On July 3, the government asked for an extension. On the same day, the court granted it. The schedule is now:

7/29: government's brief due
8/28: defendant's response due
9/18: government's reply, if any, due

[Euler]

On August 20, September 19, and October 21, defendant asked to extend his dates to respond. The court granted them each time. The schedule is currently:

11/12: defendant's response due
12/03: government's reply, if any, due

Edited November 11, 2024 at 01:58 AM by Euler

[Euler]

On November 12, defendant filed his brief. The court ruled it deficient.

On November 18, defendant re-filed his brief.

On November 25, the government asked for an extension to file its reply. The court extended the government's due date to 12/20.

On December 4, the court set oral argument for January 22.

On December 20, the government met its deadline to file its reply.

[Euler]

On January 22, oral arguments were heard by Judges Rovner, Brennan, and St. Eve.

[Euler]

On July 16, the 7th Circuit panel overturned the district dismissal and remanded the case back to the district.

CA7 said:

...
We begin with the Second Amendment's text. Nobody disputes that Carbajal-Flores's weapon, a .25 caliber semi-automatic pistol, is an arm. ... Rather, the parties argue about whether Carbajal-Flores, an illegal alien, is among "the people" that the Amendment protects. According to the government, he is not because that term covers only American citizens.
...
Even if the plain text of the Second Amendment presumptively protects Carbajal-Flores because he falls within "the people," a long tradition exists of disarming individuals, like illegal aliens, who have not sworn allegiance to the sovereign.
...
But an alien could overcome these impediments through naturalization. That process offered aliens a path to securing largely the same basket of rights afforded to natural-born subjects.
...
From the colonies to -- most critically -- the early Republic, governments consistently conditioned the ability to possess firearms on one's loyalty to the sovereign. People outside the polity were regularly disarmed unless and until they swore an oath of allegiance. This provides strong historical evidence that the Founders would have considered such regulations compatible with the Second Amendment.
...
That brings us back to the criminal law here, 18 U.S.C. § 922(g)(5)(A), and the question of whether it conforms to our Nation's regulatory tradition. Congress, in passing the law, decided to prohibit any "alien" who "is illegally or unlawfully in the United States" from possessing a firearm. ... We conclude that the provision sits comfortably alongside the line of firearm regulations that came before it.
...
Section 922(g)(5)(A) is thus sufficiently analogous to many earlier firearm regulations. Because the law "comport[s] with the principles underlying the Second Amendment," we hold that it overcomes Carbajal-Flores's facial challenge.
...
Carbajal-Flores argues that even if § 922(g)(5)(A) is facially constitutional, as we have now concluded, the law still operates in an unconstitutional manner as applied to him. In his view, our Nation's regulatory tradition supports disarming only dangerous and untrustworthy aliens. And because he is neither, he should be able to possess a pistol notwithstanding the general prohibition on aliens keeping arms.
...
As discussed, our Nation's regulatory tradition supports disarming aliens who have not sworn an oath of allegiance to the sovereign. The challenged statute extends no further than disarming people "illegally or unlawfully in the United States." ...

We express no views on whether criminal defendants may lodge as-applied challenges to other provisions contained in § 922(g)'s various subsections. But district courts need not conduct individualized assessments of illegal aliens for purposes of § 922(g)(5)(A). The district court here accordingly erred in holding the statute unconstitutional as applied to Carbajal-Flores.
...
The district court's decision to dismiss the indictment against Carbajal-Flores is REVERSED and the case is REMANDED for proceedings consistent with this opinion.

Edited July 20, 2025 at 08:12 AM by Euler

[mab22]

On 7/16/2025 at 8:09 PM, Euler said:

Even if the plain text of the Second Amendment presumptively protects Carbajal-Flores because he falls within "the people," a long tradition exists of disarming individuals, like illegal aliens, who have not sworn allegiance to the sovereign.
...
But an alien could overcome these impediments through naturalization. That process offered aliens a path to securing largely the same basket of rights afforded to natural-born subjects.
...
From the colonies to -- most critically -- the early Republic, governments consistently conditioned the ability to possess firearms on one's loyalty to the sovereign. People outside the polity were regularly disarmed unless and until they swore an oath of allegiance. This provides strong historical evidence that the Founders would have considered such regulations compatible with the Second Amendment.

So does this mean that people here on green cards, etc, who are here legally can no longer purchase or own/ possess firearms in the US, OR is this only to those here illegally?

 

My understanding is foreigners can buy firearms in the US, which would imply possession?

[Billy Bob]

There is a federal law against illegal aliens possessing firearms, and Carbajal-Flores was challenging the constitutionality of that law. There is no federal law against lawful permanent residents possessing firearms.

[Euler]

There's probably an unresolved 2A issue about resident aliens (who are part of the militia and can be drafted), but this case is only about illegal aliens.

[Euler]

On September 10 in district court, Carbajal-Flores reported his intent to petition for certiorari to the US Supreme Court. (He's got until mid-October, unless he asks for an extension.)

[Euler]

On October 14, Carbajal-Flores petitioned the US Supreme Court. (docket)

Edited October 23, 2025 at 12:09 AM by Euler

[Euler]

On October 30, the US waived its right to respond.

[Upholder]

SCOTUS Cert denied

[Euler]

In case it matters ...

On November 7 in district court, the court scheduled a status hearing for March 30, 2026.

That would be the same district court that acquitted him previously.

[Euler]

On March 30, the government reported that there is no plea deal. Parties will be proceeding to trial. Another status hearing is scheduled for June 22.

[Euler]

On June 22, at the status hearing, the judge scheduled another status hearing for August 31.

[Euler]

On August 31, at the status hearing, the judge scheduled another status hearing for October 14.