The Seventh Circuit just handed down a major ruling out of Chicago — and it went exactly the way I predicted. In United States v. Carbajal-Flores, No. 24-1534 (7th Cir. July 16, 2025), a unanimous three-judge panel reversed the district court and held that 18 U.S.C. § 922(g)(5)(A) — the federal prohibition on firearm possession by illegal aliens — is constitutional both facially and as applied. The bottom line: illegal aliens do not have Second Amendment rights in this country. Period. Full stop.
The Facts
Heriberto Carbajal-Flores, a Mexican national unlawfully present in the United States, was arrested by Chicago Police after firing a pistol in a city street during the 2020 civil unrest. A grand jury indicted him under 18 U.S.C. § 922(g)(5)(A). The district court below dismissed the indictment, finding the statute unconstitutional as applied. Chief Judge Michael B. Brennan, writing for the panel and joined by Senior Judge Ilana Diamond Rovner and Judge Amy J. St. Eve, reversed:
“Chicago police arrested Mr. Flores after he repeatedly fired his pistol in a city street. A grand jury later indicted him for possessing a firearm as an illegal alien in violation of 18 U.S.C. § 922(g)(5)(A). We must decide whether that federal law comports with the Second Amendment.”
The Bruen Framework Applied
The court correctly started with the text-history-tradition test from New York State Rifle & Pistol Ass’n, Inc. v. Bruen, 597 U.S. 1 (2022): when the Second Amendment’s plain text covers an individual and his conduct, protection is presumed, and the burden shifts to the government to show the regulation fits within the nation’s historical tradition of firearms regulation.
That framing set up two questions. First, is Carbajal-Flores among “the people” protected by the Second Amendment? Second, even if he is, does historical tradition permit disarming him?
The “The People” Sidestep
My view — and I have argued this for years — is that illegal aliens are simply not part of “the people.” District of Columbia v. Heller, 554 U.S. 570 (2008), defined that term as “a class of persons who are part of the national community or who have otherwise developed sufficient connection with this country to be considered part of that community.” Illegal aliens do not meet that definition. Every circuit court of appeals that has squarely addressed the question has agreed — the Fifth Circuit in United States v. Medina-Cantu (5th Cir. 2024), and the Eighth Circuit in United States v. Sitladeen (8th Cir. 2023).
The Seventh Circuit, however, stepped around the textual question. Because of preexisting circuit precedent it wanted to avoid, the panel declined to definitively resolve whether illegal aliens fall outside “the people.” It signaled strongly they probably do not — but it moved directly to historical tradition, finding that analysis dispositive on its own. I think the Supreme Court, when it finally takes this question, will hold as a textual matter that illegal aliens are not among “the people” at all.
The Loyalty-to-the-Sovereign Tradition
The historical analysis is where Carbajal-Flores does its most important work. The Seventh Circuit traces a consistent tradition — from England through the founding era — of conditioning arms rights on loyalty to the sovereign.
The English Bill of Rights 1689 guaranteed arms rights specifically to Protestants. English Catholics were excluded because they were understood to owe allegiance to the Pope, head of a foreign sovereign power. Carry that principle forward: Native American tribes were treated as foreign nations and denied arms; colonists who refused to swear loyalty to the patriot cause — the Loyalists who backed King George III — could be disarmed during the Revolution; even Pennsylvania Quakers who refused any oath at all could have their arms confiscated.
The panel summarized that tradition with precision:
“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 of 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.”
By extension, illegal aliens — beholden to a foreign sovereign by definition and present in the United States in defiance of its laws — fall squarely within that disarmable class. The Seventh Circuit reversed the dismissal and remanded for further proceedings.
What Comes Next
As I see it, this result was never in doubt at the major circuit level. The Bruen text-history-tradition framework, properly applied, compels exactly this outcome. The bricks of history the Seventh Circuit assembled — England 1689 to the founding era — form a wall that illegal-alien firearms claims cannot breach.
The Supreme Court has not yet squarely held whether illegal aliens are among “the people” under the Second Amendment. That answer is coming. When it does, my read is the Court will confirm what every serious court has already found: they are not.
This article is based on analysis by Professor Mark W. Smith, constitutional attorney and Host of the Four Boxes Diner 2nd Amendment channel. Watch the original video here. This does not constitute legal advice.