'The People' of the Second Amendment: Citizenship & the Right to Bear Arms
Santa Clara University School of Law
March 22, 2010
New York University Law Review, Vol. 85, November 2010
The Supreme Court’s recent Second Amendment decision, District of Columbia v. Heller, maintains that the constitution’s right to bear arms is an individual right to armed self-defense held by citizens. This article examines “the people” of the Second Amendment, concluding that arms-bearing cannot concurrently be a right of armed self-defense and restricted to citizens. This article proceeds in four parts. First, it analyzes the term “the people” as it has been interpreted in recent Court cases. In this section, the article concludes that constitutional text and Supreme Court jurisprudence provide no sustainable basis to believe the Second Amendment is limited to citizens, when the Second Amendment is read as a right of armed self-defense. Second, the article situates Heller’s reading within a historical context of gun regulation motivated by racial animus and xenophobia, manifested by contractions of citizenship to exclude, and gun laws intended to disarm, racial minorities and non-citizens. Part III attempts to revive a coherent theory of limiting gun rights to citizens, but ultimately concludes that, in comparison, armed self-defense is conceptually unrelated to rights such as voting and jury service. Finally, the article wrestles with the doctrinal and ideological dilemmas created by expansive readings of the nature of the gun right protected by the Second Amendment juxtaposed against the contracted class of persons to whom that newly defined right applies. Here, the article showcases how principles of gun control and gun advocacy are at odds with principles of equality, causing conundrums for all sides of the political spectrum.
Number of Pages in PDF File: 57
Keywords: Heller, guns, firearms, citizenship, immigration, second amendment, right to bear arms, aliens, immigrants
Date posted: July 23, 2009 ; Last revised: February 9, 2012