Does the Second Amendment Protect Non-Citizens?

Judge Menashi finds that Heller limited the Second Amendment to "citizens."

The Second Amendment provides "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed." The Framers used the word "people," and not the word "citizen." Does this right apply only to U.S. citizens, or does it apply to all people in the United States? Since Heller, the circuit courts have split on this question. In 2015, I wrote about Judge Wood's Seventh Circuit opinion, which found that aliens were protected by the Second Amendment.

On Thursday, a Second Circuit panel declined to resolve this issue in United States v. Perez. However, Judge Menashi concurred, and found that only citizens are protected by the Second Amendment. This conclusion follows from Heller, which repeatedly used the word "citizen."

In Heller, the Supreme Court spoke of "the right of law-abiding, responsible citizens to use arms in defense of hearth and home." District of Columbia v. Heller, 554 U.S. 570, 635 (2008). As the court recognizes, illegal aliens are "[e]xcluded from participation in our democratic political institutions." Ante at 8. This is not simply a matter of whether illegal aliens fail to be "law-abiding" and "responsible." It means they are not "citizens"—"members of the political community" to whom "'the right of the people to keep and bear Arms'" belongs. Heller, 554 U.S. at 576, 580 (quoting U.S. Const.amend. II). The court strains to avoid this key point from Heller. I would instead join those circuits that have straightforwardly concluded that illegal aliens cannot invoke the right of the people to keep and bear arms under the Second Amendment. I concur only in the judgment.

Judge Menashi explains that at the time of the framing, the right to keep and bear arms extended to "members of the political community."

That the Second Amendment codifies a right belonging to members of the political community is further confirmed by examining its historical antecedents and the practice of "founding-era legislatures." Kanter, 919 F.3d at 454 (Barrett, J., dissenting). In colonial America, the right to keep and bear arms "did not extend to all New World residents." Joyce Lee Malcolm, To Keep and Bear Arms: The Origins of an Anglo-American Right 140 (1996). While "[a]lien men … could speak, print, worship, enter into contracts, hold personal property in their own name, sue and be sued, and exercise sundry other civil rights," they "typically could not vote, hold public office, or serve on juries" and did not have "the right to bear arms" because these "were rights of members of the polity." Akhil Reed Amar, The Bill of Rights: Creation and Reconstruction 48 (1998).

Judge Menashi also explains that illegal aliens cannot be considered "law-abiding" and are not part of the political community:

The connection between the right to keep and bear arms and membership in the political community forecloses Perez's argument that he is "among 'the people' protected by the Second Amendment." Appellant's Br. 8. "Illegal aliens are not 'law-abiding, responsible citizens' or 'members of the political community.'" Portillo-Munoz, 643 F.3d at 440. That illegal aliens remain outside the political community is reflected throughout the Constitution and federal law. Illegal aliens may not hold federal elective office, U.S. Const. art. I, § 2, cl. 2; id. art. I § 3, cl. 3; id. art. II, § 1, cl. 5, are barred from voting in federal elections, 18 U.S.C. § 611(a), may not serve on federal juries, 28 U.S.C. § 1865(b)(1), and are subject to removal from the United States at any time, 8 U.S.C. § 1227(a). Accordingly, illegal aliens are not "members of the political community"—that is, "the people"— who may invoke the Second Amendment. Heller, 554 U.S. at 580.7 

Footnote 1 of Judge Menashi's opinion faults the majority for expurgating the word "citizen" from Heller:

The court repeatedly truncates quotations or paraphrases Heller to replace the word "citizens" with "persons." See ante at 7 (noting that the right "of law-abiding persons to protect themselves and family members in the home" is "'the central component' guaranteed by the Second Amendment"); id. at 9 ("Heller identified the right of 'law-abiding, responsible' persons to keep arms to be at the heart of the Second Amendment."); id. at 10 (identifying "the core guarantee of a law-abiding person's right to keep firearms for self-defense"); id. at 13 (considering whether "alternatives remain for persons who are law-abiding to acquire a firearm for self-defense"); id. at 13 (comparing "Perez's interest in possessing guns" with "that of a 'law-abiding, responsible' person pursuing self-defense"); id. at 16 (discussing "those who are not, as Heller put it, 'law-abiding'"). Because the court makes so much of the words "law-abiding" and "responsible" in the Heller opinion, it is striking how much work it does to ignore the word that immediately follows.

In NYS Rifle & Pistol, the Court rewrote the question presented. Among other revisions, the Court stripped the phrase "ordinary law-abiding citizen." At the time, I speculated that "Did Justice Sotomayor object to a right that would be limited to citizens?"

When the Court decides NYS Rifle & Pistol, the Court will have to think carefully about its use of the word "citizen." And we know Justice Kavanaugh does not like the word "alien." But here, an errant usage of the word "person," instead of "citizen," could extend Second Amendment rights to many aliens incarcerated on gun charges.