Excerpted From: Pratheepan Gulasekaram, The Second Amendment's “People” Problem, 76 Vanderbilt Law Review 1437 (October, 2023) (405 Footnotes) (Full Document)


PratheepanGulaskekaram.jpegThe Second Amendment has a “people” problem. It is not obvious that it should. After all, following a decades-long political and legal campaign by gun advocates, in 2008, a sympathetic Supreme Court decreed that the Second Amendment enshrined a preconstitutional right of self-defense possessed by each of us in our individual capacities. Presumably most persons-- regardless of immigration status--might need the home and personal protection venerated by the Supreme Court in District of Columbia v. Heller and recently reaffirmed in New York State Rifle & Pistol Ass'n v. Bruen.

At the same time that it struck down the District of Columbia's handgun law, however, Heller quizzically contracted the group who might possess a weapon. Without explanation, the majority announced that “the people” of the Second Amendment was synonymous with “law-abiding citizens.” Since then, several lower federal courts have been confronted with questions not presented in Heller yet prompted by its ultra vires citizenship talk: Are noncitizens rightsholders under the Second Amendment? Is the right to keep and bear arms a citizen-only right?

Lower federal courts wrestling with these questions since Heller have come to conflicting and inconsistent views on the scope of “the people” who may bear arms. Yet, all have ultimately and uniformly rejected noncitizens' Second Amendment challenges to the federal“alien-in-possession” criminal ban. Strikingly, these courts have done so while the Supreme Court has further expanded the substantive scope of the right through McDonald v. City of Chicago and Bruen. Debates over this new era of more accessible and more prevalent gun rights have obscured the courts' corresponding diminution of “the people.”

The disconnect between federal courts' expansion of gun rights and their contraction of noncitizens' rights is typified by United States v. Perez. In many ways, Javier Perez seemed to be the quintessential wielder of arms imagined by Heller and Bruen. According to the trial record, he was attending a barbeque with family and friends when a menacing group of individuals, possibly with gang affiliations, approached the residence. Seeing them, Perez borrowed a friend's firearm and displayed it to scare off the would-be attackers, returning the gun to its owner when the danger had passed. Perez had no criminal convictions. He had lived in the United States since he was thirteen years old, was gainfully employed, and was a father to two citizen children. Further, Perez is a member of a racial minority group, implicating the concerns voiced by Justices Thomas and Alito regarding the disparate impact of gun regulation on vulnerable populations. In short, his firearm possession implicated Heller and Bruen's animating ethos: he temporarily wielded a handgun in defense of self, loved ones, and home.

Despite these facts, what mattered to the court was Perez's lack of lawful immigration status. Federal law prohibits possession by noncitizens who are “illegally or unlawfully in the United States,” as well as nearly all nonimmigrants. The majority assumed, without deciding, that Perez was part of “the people” who could raise the Second Amendment but ultimately held that the law's categorical exclusion of unlawfully present persons passed heightened scrutiny. The concurring opinion took the direct route, holding that noncitizens are not part of “the people,” thus denying Perez's right to raise the Second Amendment. Eight appellate courts post-Heller, in line with the U.S. Court of Appeals for the Second Circuit's Perez decision, similarly have rejected Second Amendment challenges to the federal criminal ban on gun possession by certain noncitizens. These courts have done so either by choosing one of the rationales proffered by the Perez majority and concurrence or, most recently, by relying on historical inquiry to conclude that noncitizens are not part of “the people.” Separate from the criminal liability at issue in these cases, an even broader population--all noncitizens, including lawful permanent residents--faces immigration consequences, including deportation and detention, for firearms-related conduct and violations.

In combination, these federal criminal and immigration statutes, the several appellate court decisions, and the Supreme Court's rhetoric in Heller and Bruen significantly curtail, if not outright exclude, noncitizens from “the people” and, thus, the right to keep and bear arms. Together, they help relegate immigrants and guns to an obscured and hidden corner of American political and constitutional thought: a dark recess where political expediency, an unsympathetic population, and legal uncertainty converge to erode constitutional coverage.

This Article represents the first sustained scholarly inquiry into the relationship between “the people,” immigration status, and the Second Amendment in a post-Heller and post-Bruen world, with an eye toward a broader exegesis of rightsholders under the Constitution. To be sure, scholarly literature on the Second Amendment is legion, but a smaller group of scholars focuses on the exclusion of disfavored groups. Other commentators have addressed questions regarding the scope of “the people” and citizenship generally; still another growing body of literature focuses on the extent of First Amendment guarantees and Bill of Rights criminal process protections for noncitizens. Additionally, emerging scholarship is starting to address the difficulties with Bruen's recent prescription for a “text and history” approach to Second Amendment analysis. This Article intervenes at the intersections of these multiple academic strands.

At its most specific, my analysis argues that current jurisprudential attempts to define specific rightsholders signified by “the people” are myopic and misguided, at least with regard to noncitizens. In response, this Article maintains that a more coherent theory of Second Amendment rightsholders would necessarily include most, if not all, noncitizens--at least when the right is grounded in self-protection from interpersonal violence. As a consequence, the Article casts doubt on current federal laws that criminalize possession by particular noncitizens, as well as deportation rules that banish all noncitizens for firearms violations.

The larger purpose of this exploration, however, lies outside of gun rights. Indeed, the ethic of firearm ownership and the drive to purchase a gun for self-defense are lower among noncitizens than citizens. In fact, even among citizens, gun ownership is disproportionately associated with, and practiced by, a select group: white, male citizens. The low rate of noncitizen ownership may owe to a number of factors (including the federal criminal ban), but it is reasonable to attribute some part to the cultural ethos and practice in countries of birth, where firearm availability and gun violence are dramatically lower than the United States. Perhaps in part because of this ethic, these regulations do not constitute a particularly significant source of expulsion from the country. Despite a cultural ethos agnostic to gun ownership among noncitizens and the relatively small (but nonzero) number of criminal and removal prosecutions, I engage this topic because the gun rights of noncitizens provide a prism into equality and the range of rightsholders under the Constitution.

Discrimination against noncitizens has at times garnered skeptical judicial inquiry. Unfortunately, judicial attention to equality and nondiscrimination guarantees has waned as of late. Even as noncitizens, including unlawfully present persons, have become a larger and more ingrained part of our national populace, they largely exist outside of some core constitutional protections. Beyond the Second Amendment, the Supreme Court has doubted the ability of certain noncitizens to seek shelter from government actions that implicate constitutional provisions even when the rightsholders are not limited to “the people.” For example, Trump v. Hawaii and Department of Homeland Security v. Thuraissigiam contract the ability of noncitizens to seek redress through the First Amendment and access due process and habeas protections. These cases suggest that many noncitizens may not even be constitutionally recognized “persons,” let alone part of “the people.”

In short, this Article's animating concern is that the Second Amendment's “people” problem threatens to become the Constitution's “people” problem. As the Supreme Court nestles the right to bear arms into the core of America's most treasured civil liberties, the power to possess a firearm connotes more than the ability to own a particular form of property or even engage in a particular form of expression. Transcending both, the right to own a firearm evolves into a central signifier of belonging within the constitutional order.

Properly theorized, however, “the people” of the Second Amendment might generate egalitarian momentum. Broadening the Second Amendment's rightsholders might serve as the wedge that pries open the door to more expansive reconsideration of constitutional coverage in other provisions. Moreover, elucidating and expanding “the people” in the crucible of the Second Amendment permits courts and commentators to scrutinize weighty concerns over belonging, Americanness, and national security. It simultaneously brings to the fore two age-old tensions that have defined America: First, a constant dialectic between being a nation of immigrants but one that is ever paranoid of the specter of existential threat from foreigners; second, a nation proud of its armed resistance to tyranny but one held hostage by the existential threat of firearms.

Part I of this Article begins with Heller's catalytic effect on previously dormant Second Amendment challenges to group-based exclusions. Here, the Article critiques the various judicial attempts to deconstruct and reconstruct “the people” in the wake of a newly minted, self-defense-oriented Second Amendment. I argue that federal courts have thus far undertheorized their approaches to “the people,” failing to acknowledge the indeterminacy of the phrase, the incompatibility of their interpretation with other amendments that similarly classify rightsholders, or the systemic effects of their interpretations. Bruen's history-focused methodology only deepens the interpretative deficit. This Part concludes that neither the circuit court approaches of the past decade nor the Court's turn in Bruen are theoretically sound methods for examining immigrant gun regulations.

Despite this conclusion, Part II indulges Bruen's methodological prescription. It shows that even if historical inquiry could answer questions of the “who” of gun possession, past legal regulation cannot sustain gun laws premised on immigration status, at least when courts employ Bruen's particular methodology. Here, the Article tracks the background of noncitizens' exclusions from gun rights--initially premised on conflating citizenship with race and later on conflating noncitizens with “subversive” foreign ideologies--leading to statutory restrictions on immigrant gun possession during times of fervent anti-foreign sentiment. It shows that federal regulation of noncitizen possession galvanized in the mid-twentieth century as the product of a lobbying and legislative campaign that framed noncitizens as existential threats in the lead up to World War II through the Cold War. That campaign successfully substituted immigrant regulation for gun regulation. Given the motivations for such regulation and their relatively recent vintage, Part II concludes that they cannot provide a basis for upholding federal prohibitions on noncitizen possession under Bruen's methodology.

In light of the failure of current judicial approaches, Part III asks whether any other theory might justify immigrant gun laws. As the Supreme Court has done, this Part engages in intratextual analysis, comparing the Second Amendment to the First and Fourth Amendments to yield a viable theory to undergird exclusion of noncitizens from the right to bear arms. Like the Second Amendment, these Bill of Rights protections inure to “the people,” and current jurisprudence permits certain limitations based on immigration status. Nevertheless, comparing judicial interpretations of “the people” as used in these amendments relative to each amendment's purpose militates in favor of expanding “the people” who may bear arms, especially when the right is grounded in self-defense from private violence. A brief conclusion hinting at the broader implications of this analysis follows.

A final caveat before beginning: my inquiry into “the people” as a set of rightsholders is distinct from the larger project of several constitutional law scholars who use “the people” or “We the People” as the locus of discourse over sovereignty and the legitimacy of constitutional change. Those works debate the authority for constitutional interpretation and contestation through the judicial branch, the institutions of federalism, and the mechanisms of popular constitutionalism. In that debate, “the people” and “We the People” function as an abstract collective, legitimizing sovereign power and validating sources of constitutional authority and interpretation. The primary focus of those inquiries centers on “We the People” or “the People of the several States,” which might be distinguished from invocations of “the people” as specific rightsholders under the Bill of Rights. Sidestepping fundamental questions about the nature and location of sovereignty in our constitutional order, I probe the conditions under which “the people” might exclude or include immigrants. Accordingly, my project here is more grounded in the mechanics of judicial decisionmaking and interpretation. I seek to explicate “the people” under the assumption that the phrase contemplates categories of persons and can help elucidate the boundaries of group-based exclusions from the Bill of Rights.

[. . .]

The Second Amendment currently has a “people” problem. It is one entirely of the federal courts' own making. Since Heller, courts have repeatedly expanded the substantive scope of the right to keep and bear arms while constricting “the people” to justify the diminution of firearms rightsholders. The simple solution is to read most persons within the ambit of the Second Amendment for as long as it is understood to vindicate a right of armed self-protection from interpersonal violence.

Despite my focus on expanding “the people” of the Second Amendment to embrace noncitizens, my primary motivation for this Article is not to unbridle the right to keep and bear arms or to promote immigrant gun possession. Indeed, the text and structure of the Second Amendment contemplate that Congress can and will engage in firearms regulation. Using that authority, Congress might still criminalize gun crimes committed by noncitizens based on criteria independent of immigration status alone. Further, Congress might design eligibility standards for firearm possession, like waiting periods or extensive background checks, that might disparately impact noncitizens without categorically excluding them. Moreover, equitable firearms regulation can serve harm reduction and antisubordination ends, for noncitizens and citizens alike, without diminishing the Second Amendment. As others have argued in the context of race and guns, the mere fact that regulation of a particular instrument (here, firearms) might have been used as a tool of subordination and dominance does not mean reflexively that the instrument should be deregulated. A deregulatory agenda instead likely disproportionately benefits those who already own firearms and are likely to wield and use them in the future--a group that is overwhelmingly both white and male.

Rather, my motivating concern is that “the people” of the Second Amendment will be deployed as a trojan horse to further advance anti-immigrant constitutionalism. Accordingly, focusing on “the people” who may bear arms is meant to highlight the ways in which noncitizens have been treated as second-class persons in our constitutional order, including within the Second Amendment. In the end then, noncitizen gun possession is but one part of the larger project of expanding constitutional equality in multiple dimensions. As a matter of regulating the domestic and everyday lives of noncitizens outside the context of immigration concerns, with regard to a tangible tool of self-protection, equality must be recognized through the clause intended to secure it or through a more inclusive consideration of the persons the Constitution protects. Meaningfully theorizing “the people” of the Constitution is a critical part of that intervention.

Professor of Law, University of Colorado Law School.