Aliens With Guns: Equal Protection, Federal Power, and the Second Amendment

Abstract:     
The nexus between guns and alienage presents a window through which to assess the competing constitutional values embodied in the Equal Protection Clause, the federal foreign-affairs power, and the Second Amendment. This Article analyzes the application of equal-protection norms and the federal foreign-affairs power on federal and state statutes that restrict the ability of non-citizens to bear arms. Professor Gulasekaram argues that courts should evaluate alienage restrictions at both the state and federal level under a unified analytic framework that would attempt to reconcile both personhood norms, such as equality, and gate-keeping norms vindicated by reliance on federal-power doctrines. As a result, the power of the federal government to legislate with regard to non-citizens would be reduced while concurrently allowing greater flexibility for states and localities.

Keywords: aliens, alienage, gun, firearms, right to bear arms, equal protection, preemption, federal power, federalism, states' rights, citizenship, political function, second amendment

JEL Classifications: K30, K39, K10, K19

Accepted Paper Series