Citizens driving through Illinois may soon be arrested at gunpoint by illegal aliens with police badges

Illinois law currently prohibits hiring non-citizens as deputy sheriff or police officer. The state is set to reverse that law with a new bill allowing non-citizens to join sheriff's departments and the police force so long as they are either “authorized under federal law to work in the United States” or are temporarily protected from the enforcement of immigration law by the Deferred Action for Childhood Arrivals (DACA) process.

One signature away

The bill now awaits a signature from Governor J.B. Pritzker who presides over the state government trifecta of a Democrat governor and Democrat majorities in both chambers of the state legislature. The law was approved by those chambers with a number of Republicans voting in favor as well, including the Republicans leaders in the State House and State Senate, according to Illinois Leaks. 

Contingent on Feds

The bill is set to become effective January 1, 2024 if the governors signs it, as expected, but not actually lead to the hiring and arming of non-citizens until federal law is changed, since a requirement of the bill is that the non-citizen be “authorized under federal law to ... possess a firearm.” At the moment, federal law (18 U.S.C. § 922(g)(5)(A)) prohibits gun possession for illegal aliens. 

It shall be unlawful for any person—

(1) who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year [or]

(5) who, being an alien—

(A) is illegally or unlawfully in the United States . . . 

to . . . possess . . . any firearm or ammunition . . .  

The first clause expresses the federal government's desire to keep guns out of the hands of felons. It goes without saying that the government did not intend for felons to wield firearms while in charge of law enforcement. In the case of illegal aliens, some are indeed felons, as 8 U.S. Code § 1325(a) makes clear.

Any alien who (1) enters or attempts to enter the United States at any time or place other than as designated by immigration officers . . . shall, for the first commission of any such offense, be fined under title 18 or imprisoned not more than 6 months, or both, and, for a subsequent commission of any such offense, be fined under title 18, or imprisoned not more than 2 years, or both. [Emphases added].

This makes repeat offenders guilty of a Class E felony. Since one illegal entry is only a misdemeanor and many repeat offenders are not convicted, the federal gun statute adds clause (5) to clarify that mere illegal presence in the U.S. bars one from possessing a firearm. 

2nd Amendment for illegal aliens?

Illegal aliens have attempted to avail themselves of the protections of the second amendment in arguing that their convictions for violations of this gun statute should be overturned. They have not succeeded, as noted by a federal court in California.

A number of circuit courts have upheld the constitutionality of § 922(g)(5)(A)
after concluding that the Second Amendment does not protect aliens without legal status in the United States . . . (“[I]llegal aliens do not belong to the class of law-abiding members of the political community to whom the Second Amendment gives protection.” . . . “Whatever else the term means or includes, the phrase ‘the people’ in the Second Amendment of the Constitution does not include aliens illegally in the United States . . . .”) 

Other circuit courts have declined to hold that the Second Amendment does not protect unauthorized non-citizens, but have concluded that Ҥ 922(g)(5) does not impermissibly restrict [the] Second Amendment right to bear arms.

2nd Amendment for DACA beneficiaries?

Accordingly, while there's a split in the federal appellate courts about whether illegal aliens are protected by the constitution, all agree that the ban on their possession of firearms is constitutional regardless of whether the second amendment applies to illegal aliens. An attorney for a DACA beneficiary therefore tried another argument, claiming that the federal statute does not apply to his client since immigration actions against him have been deferred. The same California court disagreed.

Defendant asserts that a DACA recipient is not “illegally or unlawfully” present in the United States based upon the plain meaning of the words . . . 

Plaintiff United States asserts that . . . Defendant has no legal status in the United States and any deferral of removal under DACA is temporary . . . 

[This court concludes] that Congress made no exception for aliens illegally in the United States with deferred deportation granted by the executive branch . . . Defendant’s motion to dismiss the indictment on the grounds that the statute violated his rights under the Second Amendment is denied.

Despite the illegality, the FBI reports that its Instant Criminal Background Check system blocked over 45,000 attempted gun purchases by illegal aliens since 1998. One immigration lawyer therefore posted a video warning that even DACA beneficiaries should not to attempt to buy a gun. 

On hold

The Illinois law will have no effect, therefore, unless Congress passes a law allowing some or all illegal aliens to possess guns or until an activist federal judge ignores the California court decision and rules that DACA beneficiaries are not included in the gun ban on those “illegally or unlawfully” in the U.S on the grounds that legal action against them is on hold.

Opposition

One state senator did voice fierce opposition to the new law, regardless of whether it will be immediately impactful or not. Senator Chapin Rose was recorded in a legislative session offering the following message about non-citizens acting as armed police:

Why on earth would we [pass this law]? The most important power of any government, the most important power that must be conferred, with absolute absolute concern for how it is employed and how it can be abused, is the power to arrest.

We listen every day in this building to debates about the police powers of the State of Illinois and yet here we are conferring the police power, the ability to arrest a citizen of the State of Illinois or frankly a visitor to Illinois from anywhere else in the United States of America, an American citizen, to a non-citizen?

[To] hand the power to arrest and detain a citizen of this state or . . . any state in the United States to a non-citizen is a fundamental breach of democracy. It is antithetical to the police power of any state and . . . quite frankly, it's antithetical to everything that I hear from the other side of the aisle every day in this building.

This is a fundamentally bad idea; there's no fixing it there's no amending it, there's no nothing. It's just a fundamentally bad idea. I don't care where this individual is from - Australia - they should not be able to arrest a United States citizen on United States soil . . . You wouldn't hand this over to the Russians and say here come arrest us.

There is a greater principle at stake here than the stuff we typically argue about in this building; a much greater principle and you cannot hand the power to arrest any citizen of the United States, let alone the ones we represent here in Illinois, over to someone who's not a United States citizen.

Other states

Illinois will not be alone if its governor signs the new bill. Colorado's governor signed a very similar bill in April, 2023 and California passed its own version in 2022. At the time that law was introduced, Colorado Public Radio noted two other states introducing such laws, one in which the law was passed and one in which it wasn't.

California passed a law last year to allow anyone authorized to work legally in the state to go into law enforcement. Wisconsin considered a similar bill but ultimately voted it down. 

Will a Wisconsin resident fearing the possibility of being stopped by a legally armed group of illegal aliens avoid California and a growing number of other states offering police badges to non-citizens?