« Kellen Funk & Sandra Mayson: Bail at the Founding
Michael Ramsey
| Main | Donald Dripps: The "Cruel and Unusual" Legacy of the Star Chamber
Michael Ramsey »

03/08/2023

Pratheepan Gulasekaram: The Second Amendment's 'People' Problem [Updated]
Michael Ramsey

Pratheepan Gulasekaram (Santa Clara University School of Law) has posted The Second Amendment's 'People' Problem (Vanderbilt Law Review, forthcoming) (51 pages) on SSRN.  Here is the abstract:

The second amendment has a “people” problem. In 2008, Heller v. District of Columbia expanded the scope of the second amendment, grounding it in an individualized right of self-protection. At the same time, Heller’s rhetoric limited the “the people” of the second amendment to “law-abiding citizens.” In 2022, NYSRPA v. Bruen doubled-down on the amendment’s self-defense rationales, but once again framed the right as one possessed by “citizens.” In the period between the two Supreme Court cases, eight federal courts of appeals wrestled with the question whether the right to keep and bear arms is a citizen-only right. Although those courts proffered varying perspectives on the meaning of “the people,” they uniformly rejected challenges to the federal criminal ban on possession by unlawfully present persons and nonimmigrants. In addition to the federal criminal ban, the immigration code allows for deportation of all noncitizens, including permanent residents, for firearms-related violations. In combination, the Supreme Court’s rhetoric, lower federal court decisions, and federal criminal and immigration statutes excise noncitizens from the “the people” of the second amendment.

This Article is the first to examine the relationship between “the people,” immigration status, and the right to keep and bear arms, in the wake of both Heller and Bruen. My analysis argues that courts undertheorize the systemic effects of constricting “the people” to citizens, or more recently, countenance historical inquiries that yield incoherent results. Intratextual comparison of “the people” of the second amendment with “the people” of the first and fourth amendments fares no better. That appraisal also commands broader inclusiveness for the second amendment’s rightsholders than current jurisprudence permits. This Article concludes that a more coherent theory of second amendment rightsholders would necessarily include most noncitizens, at least when the right is grounded in self-defense from interpersonal violence. This conclusion casts doubt on current federal law that categorically criminalizes possession by certain groups of noncitizens, as well as deportation rules that banish all noncitizens for firearms violations. More capacious interpretations of the second amendment’s “the people” in turn, helps ensure noncitizens’ inclusion under other core constitutional protections.

Just off the top of my head, it seems plausible that as an original matter the Second Amendment protects law abiding citizens and noncitizens while the Second Amendment incorporated by the Fourteenth Amendment protects only citizens (because it's incorporated through the privileges or immunities clause).  But the Supreme Court may have boxed itself out of that result by continuing to say incorporation arises from the due process clause.

UPDATE:  A reader comments:

You said the Privileges or Immunities clause of the 14th Amendment only applies to citizens. I have heard that interpretation before but in reading it I had a different interpretation purely from the text (I fully admit to not knowing much of the legal history). 
 
"No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States." I can see where people interpret it as limited to citizens but then that leaves a big question, which privileges or immunites. There are tons out there, some of which we recognize and others we don't. If the "...of citizens of the United States" phrase is about who the clause applies to, it doesn't also act as a modifier or the "privileges or immunitites."
 
I read it as such a modifier and then it doesn't limit persons it would apply to. It would simply be a ban on states abridgment similar to how the 1st Amendment is simply a ban on Congressional abridgment, and would therefore apply to all persons.
 
Is there any law review or similar literature out there fully analyzing the text and history regarding this possible reading? Or has it been simply assumed that the clause only applies to citizens?
 
A good question and I don't know the answer, though I admit that for me the limitation to citizens is mostly an assumption.  If anyone knows of in depth scholarship on the issue let me know and I'll post it.