An Unqualified Right to Self-Defense: Alienage Restrictions and the Second Amendment

Author:Jared D. Arnold
Position:J.D. Candidate, Capital University Law School, May 2017. Thank you, Sandra, for your constant encouragement during this writing process and throughout my law school experience. I am deeply grateful for your tireless patience and support. Thank you also to Professor Mark R. Brown for your thoughtful guidance. I dedicate this Note to those who...
Pages:481-507
SUMMARY

Conditioning fundamental rights on citizenship, including the fundamental right to keep and bear arms as provided by Heller and the Second Amendment, runs afoul of the principles of the Constitution itself. Any fundamental right in which protecion is conditioned on an alienage or citizenship basis is contrary to the stated purpose of the Constitution–elevating the rights of the individual above... (see full summary)

 
FREE EXCERPT
AN UNQUALIFIED RIGHT TO SELF-DEFENSE: ALIENAGE
RESTRICTIONS AND THE SECOND AMENDMENT
JARED D. ARNOLD*
I. INTRODUCTION
Gun regulation and immigration are both contentious issues in
America today.1 In this era of increased attention to gun regulation and
immigration, often overlooked is the constitutional nexus where equal-
protection principles, the Second Amendment, and the fundamental right to
self-defense converge––alienage restrictions on the right to bear arms.
Since the Supreme Court of the United States announced in District of
Columbia v. Heller that the Second Amendment stands for the fundamental
right of armed self-defense in the home,2 myriad lower court rulings have
proven the difficulty in interpreting whom this right exactly protects.3
Making the determination into whether the Court intended noncitizens to
fall within the amendment’s reach reveals a flaw with the reasoning used to
determine the scope of rights under the Second Amendment.4
In a recent decision noting this inherent flaw, the United States Court
of Appeals for the Seventh Circuit devoted extended consideration to the
idea that Heller’s language was in fact instructive as to whom the Second
Amendment applies.5 The Seventh Circuit also criticized the implications
Copyright © 2017, Jared D. Arnold.
* J.D. Candidate, Capital University Law School, May 2017. Thank you, Sandra, for
your constant encouragement during this writing process and throughout my law school
experience. I am deeply grateful for your tireless patience and support. Thank you also to
Professor Mark R. Brown for your thoughtful guidance. I dedicate this Note to those who
come to the United States to live the American dream, and seek the means to protect their
families in their newfound home. Finally, thank you to the entire Editorial staff of the
Capital University Law Review for your assistance in writing this Note. All opinions and
mistakes are my own.
1 Chad Brooks, The Second Amendment & the Right to Bear Arms, LIVE SCI. (Jan. 22,
2013, 2:48 PM), http://www.livescience.com/26485-second-amendment.html [https://
perma.cc/M2F2-DFA2]; Kelefa Sanneh, A Serious Immigration Debate, Thanks to Donald
Trump, NEW YORKER (Aug. 19, 2015), http://www.newyorker.com/news/daily-comment/a-
serious-immigration-debate-thanks-to-donald-trump [https://perma.cc/CKS7-GRVS].
2 554 U.S. 570, 570 (2008).
3 See infra Section II.D.
4 See infra Section IV.A.
5 See United States v. Meza-Rodriguez, 798 F.3d 664, 66970 (7th Cir. 2015), cert.
denied, 136 S. Ct. 1655 (2016).
482 CAPITAL UNIVERSITY LAW REVIEW [45:481
of the Heller majoritys allusion to the idea that only the “citizenry” may
enjoy the right awarded under the Second Amendment.6
The Seventh Circuit further noted that, while other federal appellate
courts have been presented with the same issue and have unanimously
declined to extend the scope of protection, no Supreme Court decision has
addressed “whether unauthorized noncitizens (or noncitizens at all) are
among ‘the people’ on whom the Amendment bestows this individual
right.”7
The Seventh Circuit reached this conclusion by observing that the
phrase “the people” occurs in the Second Amendment as well as the First
and Fourth Amendments, and then, in relying on the same historical
analysis found in Heller, determined the phrase has the same meaning in
all three.8 Therefore, the Seventh Circuit reasoned, the Court’s opinion in
Heller could not stand for the proposition that noncitizens are
automatically excluded from the Second Amendment.9
Conversely, the United States Court of Appeals for the Fourth,10
Fifth,11 and Eighth12 Circuits have all determined that the Supreme Court’s
language in Heller was deliberate. Each relied on the exact terms and
phrasing from dicta in Heller to unanimously hold that unauthorized
noncitizens have no constitutional protection under the Second
Amendment.13 This marked difference amongst the circuits on this
important issue of the fundamental right of self-defense has created a split
on the issue and therefore increased the likelihood of a Supreme Court
review.
This Note attempts to determine the merits of each side. Specifically,
this Note draws attention to how the Supreme Court modified its own
language from precedential cases to arrive at its decision in Heller,14 in
what may be a preemptive attempt to extinguish any possibility that
6 Id.
7 Id. at 669.
8 See District of Columbia v. Heller, 554 U.S. 570, 592 (2008) (observing that “it has
always been widely understood that the Second Amendment, like the First and Fourth
Amendments, codified a pre-existing right”); id. at 580 (quoting United States v. Verdugo-
Urquidez, 494 U.S. 259, 265 (1990)) (noting that “the people” is “a term of art employed in
select parts of the Constitution,” including the First, Second, Fourth, Ninth, and Tenth
Amendments).
9 See Meza-Rodriguez, 798 F.3d at 664; United States v. Huitron-Guizar, 678 F.3d
1164, 116566 (10th Cir. 2012).
10 United States v. Carpio-Leon, 701 F.3d 974 (4th Cir. 2012).
11 United States v. Portillo-Munoz, 643 F.3d 437 (5th Cir. 2011).
12 United States v. Flores, 663 F.3d 1022 (8th Cir. 2011).
13 See infra Section III.B.
14 See infra Section IV.A.

To continue reading

FREE SIGN UP