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

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, 669–70 (7th Cir. 2015), cert.

denied, 136 S. Ct. 1655 (2016).

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

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, 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.