The Second Amendment protects people’s ability to own a gun even if they’ve entered the…
THE RELOADThe Second Amendment protects people’s ability to own a gun even if they’ve entered the country illegally.
That’s the ruling handed down by US District Judge Sharon Johnson Coleman on Friday. She found the federal prohibition on illegal immigrants owning guns is unconstitutional, at least as applied to Heriberto Carbajal-Flores. She ruled the ban did not fit with America’s historical tradition of gun regulation as required under the Supreme Court’s landmark New York State Rifle and Pistol Association v. Bruen ruling.
“The noncitizen possession statute, 18 U.S.C. § 922(g)(5), violates the Second Amendment as applied to Carbajal-Flores,” Judge Colman wrote in US v. Carbajal-Flores. “Thus, the Court grants Carbajal-Flores’ motion to dismiss.”
The ruling is the latest fallout from the new standard for Second Amendment cases set in Bruen. Since the landmark case was decided in 2022, a wide swath of state and federal gun restrictions have come under increased scrutiny in the courts. Among the most commonly recurring questions raised by the new standard is who can be barred from owning guns, and the Carbajal-Flores case is among the first to examine whether people who entered the country illegally are among them.
Judge Coleman, a Barack Obama appointee, initially found the gun ban for illegal immigrants was constitutional back in April 2022. However, she agreed to reconsider the case in light of rulings from the federal appeals courts in the Third and Seventh Circuit that questioned whether those convicted of non-violent crimes could be permanently disarmed after the High Court handed down Bruen in June 2022. She concluded breaking misdemeanor immigration laws alone is not enough justification to strip somebody of their gun rights under the new test.
“[C]arbajal-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,” Judge Coleman wrote. “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 Department of Justice (DOJ) argued the modern ban was akin to historical bans on loyalists owning guns during the Founding Era and should stand. However, Judge Coleman found that historical ban included exceptions that imply the ban was based on the actions of individual loyalists.
“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,” she wrote. “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).”
She said there was no reason to think Carbajal-Flores was dangerous. So, applying the ban to him did not follow historical tradition.
“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,” Judge Coleman wrote. “Thus, this Court finds that, as applied to Carbajal-Flores, Section 922(g)(5) is unconstitutional.”
The ruling deepens the divide in the lower courts over how to interpret historical gun laws and compare them to modern restrictions. Several courts have come down on either side of whether permanent federal prohibitions on gun ownership by groups of people convicted of varying crimes are constitutional. For example, in US v. Jackson, a three-judge panel for the Eighth Circuit upheld the same law at issue in US v. Carbajal-Flores. But the panel also foreclosed challenges to that law based on how it was applied to specific non-violent offenders.
“In sum, we conclude that legislatures traditionally employed status-based restrictions to disqualify categories of persons from possessing firearms,” Judge Steven Colloton, a George W. Bush appointee, wrote. “Whether those actions are best characterized as restrictions on persons who deviated from legal norms or persons who presented an unacceptable risk of dangerousness, Congress acted within the historical tradition when it enacted § 922(g)(1) and the prohibition on possession of firearms by felons.”…
A year after the 2022 U.S. Supreme Court decision in favor of Americans’ right to carry guns in public, the issuance of permits to carry guns has skyrocketed in the Garden State.
In 2021, the year before the ruling, 631 gun-carry permits were issued in New Jersey. That number went up to 19,933 in 2023, a 3,000% increase, according to recently released data by the Attorney General’s Office.
The data further shows a stark hike in the number applications for permits to carry that were processed right after the Supreme Court decision at the end of June 2022. The decision struck down a New York law that required citizens to prove they had “proper cause” to carry a handgun. Writing for the 6-3 majority, Associate Justice Clarence Thomas said the New York law violated the Constitution’s “right to keep and bear arms.”
New Jersey had similar restrictions before the court’s decision. Residents here seeking permission to carry a gun had to demonstrate they faced “specific threats or previous attacks” that present a danger to their life and can’t be avoided any other way.
While there were only 42 applications processed in June 2022, that number went up to 381 in July 2022; 1,334 in August 2022; and 2,099 in October 2022. Click here to see the data dashboard.
And the numbers keep going up. In January 2024 there were 2,475 applications processed, roughly four times the amount of permits issued in in 2021, and the largest amount seen in single month since the Supreme Court made its landmark decision.
Data on permit to carry applications was made public by the Attorney General’s Office in a effort to make the public aware about how many guns are out there in the state, the state office said in a statement.
“Transparency is a key component to enhancing public safety. The data available in this dashboard allows its users to gain an understanding of where in New Jersey the applications for permits to carry firearms is increasing,” Attorney General Matthew Platkin said.
Platkin also announced that “Gun Free Zone” decals are available to New Jersey businesses that want to prohibit firearms on their property.
“The decals can help ensure the increase in people carrying guns doesn’t lead to a higher rate of shootings and gun deaths like those experienced in states with less-protective gun laws than New Jersey,” Platkin added.
Where in NJ are applications for permits to carry are increasing?
At the Shore, Monmouth and Ocean counties saw the most permit-to-carry applications of all counties in the state. Between July 2022 and February 2024, Ocean and Monmouth processed 3,358 and 3,108 applications, respectively.
Sussex and Warren were the counties that registered the most applications per capita, with 76 and 72 processed applications per 10,000 residents, respectively.
Conversely, Mercer and Hudson counties had the lowest rate in the same period, with only 18 and 11 applications per 10,000 residents, respectively.
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