Is the Second Amendment Limited to Citizens?


This week a federal magistrate judge in Florida concluded that illegal aliens do not have a right to arms under the Second Amendment. "That common law right was held only by citizens and those who swore allegiance to the Government," U.S. Magistrate Judge Edwin Torres writes (PDF). "It did not include everyone present on American soil." In a 1990 decision, Torres notes, the Supreme Court said "'the people' protected by the Fourth Amendment, and by the First and Second Amendments, and to whom rights and powers are reserved in the Ninth and Tenth Amendments, refers to a class of persons who are part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community." Likewise, in this year's decision overturning the Washington, D.C., gun ban, the Court said "the people" in the Second Amendment "unambiguously refers to all members of the political community." Since illegal aliens do not qualify as members of the political community, Torres concluded, they are not covered by the Second Amendment.

Eugene Volokh agrees with Torres' conclusion but wonders whether his reasoning also would exclude legal U.S. residents from the Second Amendment's protection. He notes that "federal law generally bars gun possession by noncitizens who are here under a nonimmigrant visa," while "some state laws go further and ban all possession by noncitizens, including by permanent residents." So does Guam, a federal domain whose law "could be challenged even without reaching the question whether the Second Amendment is incorporated against the states." Over the years, the Supreme Court has extended to legal residents almost all of the constitutional guarantees that citizens enjoy, including freedom of speech and religion, security against unreasonable searches and seizures, due process and other trial-related rights, equal protection, and just compensation for takings. If "the people" in the First and Fourth amendments includes noncitizens, is there a compelling reason to think "the people" in the Second Amendment does not?