482 CAPITAL UNIVERSITY LAW REVIEW [45:481
of the Heller majority’s 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
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
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
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
9 See Meza-Rodriguez, 798 F.3d at 664; United States v. Huitron-Guizar, 678 F.3d
1164, 1165–66 (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.