The Second Amendment's "People" Problem

• Published in: Vanderbilt law review 2023-10, Vol.76 (5), p.1437-1520
• Main Author: Gulasekaram, Pratheepan
• Format: Article
• Language: English
• Subjects: Bans; Citizenship; Constitutional law; Criminal liability; Deportation; Equal rights; Federal court decisions; Firearm laws & regulations; Firearms; Immigration policy; Noncitizens; Rhetoric; Self defense; Violations; Violence
• ISSN: 0042-2533; 1942-9886

The Second Amendment has a people problem. In 2008, District of Columbia v. Heller expanded the scope of the Second Amendment, grounding it in an individualized right of self-protection. At the same time, Hellers rhetoric limited the people of the Second Amendment to law-abiding citizens. In 2022, New York State Rifle & Pistol Ass n v. Bruen doubled down on the Amendments self-defense rationales but, once again, framed the right as one possessed by citizens. In between and after the two Supreme Court cases, several lower federal courts, including eight federal courts of appeals, wrestled with the question whether the right to keep and bear arms is a citizen-only right. Although those courts proffered varying perspectives on the meaning of the people, they uniformly rejected challenges to the federal criminal ban on possession by unlawfully present persons and nonimmigrants. In addition to the federal criminal ban, the immigration code allows for deportation of all noncitizens, including permanent residents, for firearmsrelated violations. In combination, the Supreme Courts rhetoric, lower federal courts decisions, and federal criminal and immigration statutes excise noncitizens from the people of the Second Amendment. This Article is the first to examine the relationship between thepeople, immigration status, and the right to keep and bear arms in the wake of both Heller and Bruen. My analysis argues that courts undertheorize the systemic effects of constricting the people to citizens or, more recently, countenance historical inquiries that yield incoherent results. Intratextual comparison of "the people" of the Second Amendment with "the people" of the First and Fourth Amendments fares no better. That appraisal also commands broader inclusiveness for the Second Amendment's rightsholders than current jurisprudence permits. This Article concludes that a more coherent theory of Second Amendment rightsholders would necessarily include most noncitizens, at least when the right is grounded in self-defense from interpersonal violence. This conclusion casts doubt on current federal law that categorically criminalizes possession by certain groups of noncitizens, as well as deportation rules that banish all noncitizens for firearms violations. More capacious interpretations of the Second Amendment's "the people," in turn, help ensure noncitizens'inclusion under other core constitutional protections.