Former ATF agent says judge’s ruling on illegal immigrant gun rights is ‘illogical’

by Vern Evans

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A former senior Bureau of Alcohol, Firearms, Tobacco and Explosives (ATF) official warns that a federal court’s finding that illegal immigrants have gun rights protected by the Constitution could pose a danger to law enforcement.

Last week, U.S. District Judge Sharon Johnson Coleman in the Northern District of Illinois ruled that a federal prohibition on illegal immigrants owning firearms is unconstitutional as applied to defendant Heriberto Carbajal-Flores. Scott Sweetow, a 30-year veteran of the ATF, told Fox News the decision is “hugely problematic” for members of law enforcement. 

“This really throws a complete grenade into the enforcement of federal firearms laws by specifically ATF because of how far-reaching this is,” said Sweetow, a former deputy assistant director at the agency’s Office of Strategic Intelligence and Information.

The district court’s controversial ruling in U.S. v. Carbajal-Flores has divided gun rights activists and inflamed debate over where courts should draw the line on firearms regulations in a post-Bruen world. That landmark 2022 Supreme Court decision established a new standard to determine whether a law violates the Second Amendment, requiring judges to conduct a historical analysis and find it consistent with the nation’s tradition of firearm regulations to be held constitutional. 

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In her decision Friday, Coleman found that while a federal ban on illegal immigrants is “facially constitutional,” there is no historical tradition of firearm regulation that permits the government to deprive a noncitizen who has never been convicted of a violent crime from exercising his Second Amendment rights.

“The noncitizen possession statute … violates the Second Amendment as applied to Carbajal-Flores,” the judge wrote. “Thus, the Court grants Carbajal-Flores’ motion to dismiss.”

Sweetow said Coleman’s decision was “illogical.” He described how a friend of his, a law-abiding businessman who lives in Chicago, cannot legally carry a firearm in the city even though he has an Illinois state firearms owner ID card. 

“He has not been able to get a permit to have a firearm, but yet an illegal alien, who fired his gun recklessly … he’s allowed to have a firearm. And there’s just something illogical and wrong about that,” Sweetow said. 

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Defendant Heriberto Carbajal-Flores discharges his weapon.

According to court documents, Carbajal-Flores is an illegal immigrant who claims that he came to the United States as a young boy and has protected legal status under President Obama’s Deferred Action for Childhood Arrivals executive order. On June 1, 2020, he was found to be in possession of a handgun in the Little Village neighborhood of Chicago and was subsequently charged with violating a federal law that prohibits noncitizens who are not legally authorized to be in the U.S. from possessing firearms. 

In an April 2022 decision, Coleman denied Carbajal-Flores’ first motion to dismiss his indictment, finding that the ban was constitutional. However, Carbajal-Flores asked the court to reconsider that ruling following the Supreme Court’s decision in Bruen and appellate decisions in the Third and Seventh circuits that considered whether people convicted of nonviolent crimes can be prohibited from possessing firearms.

Upon review, Coleman concluded that Carbajal-Flores’ illegally present status was not sufficient to deny him Second Amendment rights, noting that the defendant had never been convicted of a felony or any other violent crime. 

Sweetow said the practical effect of Coleman’s decision is to severely undermine federal firearms regulations. 

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Heriberto Carbajal-Flores with gun in hand.

“Essentially, what the judge has done is she has invalidated the 1968 Gun Control Act and all the amendments that have come since,” he told Fox News. 

For example, individuals who purchase a gun from a licensed dealer are required to fill out an ATF form and undergo a background check through the FBI’s Firearms Checks system. “How is the FBI supposed to access records of people who have come into the United States illegally?” Sweetow asked. 

He said Coleman’s decision will throw law enforcement “into complete turmoil because someone who’s going to be enforcing the laws no longer knows whether those laws are even valid.” 

“It definitely has to be appealed, because otherwise, it’s going to make it tough to prosecute any criminals for possession of a firearm.” 

The U.S. Attorney’s Office for the Northern District of Illinois did not respond when asked if prosecutors planned to appeal Coleman’s ruling. 

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