An Unqualified Right to Self-Defense: Alienage Restrictions and the Second Amendment

AN UNQUALIFIED RIGHT TO SELF-DEFENSE: ALIENAGE RESTRICTIONS AND THE SECOND AMENDMENT JARED D. ARNOLD * I. I NTRODUCTION 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 Eighth 12 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. 2017] ALIENAGE RESTRICTIONS AND THE SECOND AMENDMENT 483 illegally-present noncitizens 15 are entitled to the constitutional right to possess firearms in the home for the purpose of self-defense. 16 Importantly, this altered wording is what some circuit courts have used to validate laws that place alienage restrictions on owning or possessing firearms. 17 Further, this Note contends that conditioning fundamental rights on citizenship status runs afoul of the principles of the Constitution itself. 18 Namely, any fundamental right in which protection is conditioned on an alienage or citizenship basis is contrary to the stated purpose of the Constitution––elevating the rights of the individual above the rights of the state. 19 II. B ACKGROUND A. Brief History of the Supreme Court and the Second Amendment The Second Amendment of the United States Constitution 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.” 20 From the founding of the Republic through the nineteenth century, the Supreme Court of the United States addressed the Second Amendment only three times 21 —in 1876, 22 1886, 23 and 1939. 24 On each occasion, the Court only went as far as to hold that the Second Amendment granted to the people a 15 For the remainder of this Note, the term “noncitizen” refers to those commonly known as “illegal aliens” or simply “aliens.” Each term emphasizes the assumed foreignness and difference of otherwise law-abiding persons living in the Unites States, and this Note is cognizant of their derogatory implications. See Gerald M. Rosberg, The Protection of Aliens from Discriminatory Treatment by the National Government , 1977 SUP. CT. REV. 275, 303 (1977) (“With regard to the possible stigmatizing effect of the classification, the aliens’ claim is a good deal stronger. The very word, ‘alien,’ calls to mind someone strange and out of place, and it has often been used in a distinctly pejorative way.”). 16 See infra Section IV.A. 17 See infra Section III.B. 18 See infra Part V. 19 See id. 20 U.S. CONST. amend. II. 21 The Court did hear a fourth case regarding the Second Amendment, but simply found there was no federal question and dismissed the case for lack of jurisdiction. See Miller v. Texas, 153 U.S. 535 (1894). 22 United States v. Cruikshank, 92 U.S. 542 (1876). 23 Presser v. Illinois, 116 U.S. 252 (1886). 24 United States v. Miller, 307 U.S. 174 (1939). 484 CAPITAL UNIVERSITY LAW REVIEW [45:481 right to bear arms only when participating in activities associated with the militia. 25 Furthermore, in Unites States v. Miller , the Court held the Second Amendment referred to the militia as it was defined in Article I, Section Eight, of the Constitution—specifically, the militia organized by Congress and subject to combined federal and state control. 26 This has traditionally been known as the “collective rights” interpretation of the original meaning of the Second Amendment. 27 For almost a century, the collective rights model was widely accepted and relatively uncontroversial. 28 Fast-forward to the early twentieth century, and the Supreme Court’s position shifts away from the collective rights model to instead embrace an “individual rights” 29 view of the Second Amendment. 30 In Heller , the Court struck down several statutes from the District of Columbia that prohibited personal possession of handguns. 31 The Court held, above all else, the Second Amendment protects an individual right to keep and 25 Cruikshank , 92 U.S. at 553; Presser , 116 U.S. at 263; Miller , 307 U.S. at 178. 26 The Court stated: The Constitution as originally adopted granted Congress the power— “To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions; To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress.” With obvious purpose to assure the continuation and render possible the effectiveness of such forces the declaration and guarantee of the Second Amendment were made. It must be interpreted and applied with that end in view. Miller , 307 U.S. at 178. 27 DAVID C. WILLIAMS, THE MYTHIC MEANINGS OF THE SECOND AMENDMENT: TAMING POLITICAL VIOLENCE IN A CONSTITUTIONAL REPUBLIC 15 (2003); see generally Parker v. District of Columbia, 478 F.3d 370 (D.C. Cir. 2007) (explaining the collective right and individual right positions in the Second Amendment debate). 28 WARREN FREEDMAN, THE PRIVILEGE TO KEEP...