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«“THE PEOPLE” OF THE SECOND AMENDMENT: CITIZENSHIP AND THE RIGHT TO BEAR ARMS PRATHEEPAN GULASEKARAM* The Supreme Court’s recent Second ...»

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“THE PEOPLE” OF THE SECOND

AMENDMENT: CITIZENSHIP AND

THE RIGHT TO BEAR ARMS

PRATHEEPAN GULASEKARAM*

The Supreme Court’s recent Second Amendment decision, District of Columbia v.

Heller, asserts that the Constitution’s right to bear arms is an individual right to

armed self-defense held by law-abiding “citizens.” This Article examines the implications of this description, concluding that the Second Amendment cannot concurrently be a right of armed self-defense and restricted to citizens. The Article proceeds in three parts. First, it analyzes the term “the people” as it has been interpreted in recent Court cases. The Article concludes that constitutional text and Supreme Court jurisprudence provide no sustainable basis to believe the Second Amendment is limited to citizens. Second, the Article situates Heller within a historical context of gun regulation motivated by racial animus and xenophobia, manifested by contractions of citizenship to exclude—and gun laws intended to disarm—racial minorities and noncitizens. Third, the Article attempts to revive a coherent theory justifying the limitation of gun rights to citizens but ultimately concludes that armed self-defense is conceptually unrelated to historically political rights such as voting and jury service. Thus, Heller’s holding regarding who is entitled to armed self-defense is logically unsound and doctrinally troubling.

INTRODUCTION................................................. 1522 I. WHO ARE “THE PEOPLE”?............................. 1527 A. Citizens in the Constitution, Verdugo-Urquidez, and Heller............................................... 1528 B. Incorporation of the Second Amendment and Noncitizens......................................... 1539

II. RACE, CITIZENSHIP, XENOPHOBIA, AND THE RIGHT TO

BEAR ARMS IN THE AMERICAN LEGAL NARRATIVE... 1542 A. Guns and Citizens from the Founding to the Civil War................................................. 1545 * Copyright  2010 by Pratheepan Gulasekaram, Professor of Law. Santa Clara University School of Law, J.D., Stanford Law School. Thanks to Professors David Ball, Devon Carbado, Erwin Chemerinsky, David Friedman, Kyle Graham, Bradley Joondeph, Stephen Lee, Stephen Legomsky, Thom Main, Darrell Miller, Michelle Oberman, Margaret Russell, David Sloss, Jonathan Todres, Rose Villazor, Eugene Volokh, Jonathan Weinberg, and David Yosifon for their helpful suggestions. Thanks also to the participants at UCLA’s Advanced Critical Race Studies Colloquium Series, the Loyola School of Law Working Paper Series, the McGeorge School of Law Junior Scholars Workshop, the Emerging Immigration Scholars Conference at Hofstra Law School, and the Santa Clara University School of Law Paper Workshop Series for their time reading and considering this paper. Special thanks to Gene Kim (S.C.U., J.D. 2011) and Daniel Richards (S.C.U., J.D. 2011) for excellent research assistance and to Dean Donald Polden for his support of this project. A final thank you to the N.Y.U. Law Review Editorial Staff for their tireless work in preparing this Article for publication.

1522 NEW YORK UNIVERSITY LAW REVIEW [Vol. 85:1521

–  –  –

INTRODUCTION

The gun, its availability to the civilian population,1 its use for both public and private ends,2 and the violence associated with it,3 are uniquely American. In its recent ruling in District of Columbia v.

Heller, the Supreme Court reaffirmed the centrality of firearms to American civil and political identity.4 Opining that the right to bear arms is an individual right, the Court struck down a Washington, D.C., handgun law that virtually banned handgun possession. In doing so, the Court constitutionalized a right to armed self-defense.5 While this Article does not directly engage the persuasiveness vel non of the individual rights view endorsed by Heller, it explores the significance of the majority’s articulation of the subset of individuals to whom the right inures. Although the Second Amendment reads as a protection of the right of “the people to keep and bear Arms,”6 Justice Scalia’s majority opinion refers to the protected class as “lawabiding citizens”7 and further clarifies that “the people” refers to 1 See Factbox: Guns and Gun Ownership in the United States, REUTERS, Apr. 17, 2007, available at http://www.reuters.com/assets/print?aid=USN1743414020070417 (detailing that estimated 34% of U.S. citizens own guns and over 200 million guns are in private hands).

2 Richard Slotkin, Equalizers: The Cult of the Colt in American Culture, in GUNS, CRIME, AND PUNISHMENT IN AMERICA 54, 55 (Bernard E. Harcourt ed., 2003) (“The difference between the United States and Europe is that our culture grants a far broader license to private individuals to use violence for private ends.”).

3 Robert Weisberg, Values, Violence, and the Second Amendment: American Character, Constitutionalism, and Crime, 39 HOUS. L. REV. 1, 10–11 (2002) (“[A]mong ‘peer’ nations [the United States] is exceptional for having the highest homicide rate.... [W]e are probably exceptional in terms of the number of guns in private hands.”).





4 128 S. Ct. 2783 (2008) (holding that Second Amendment protects individual right to possess firearms and striking down District of Columbia’s handgun regulation).

5 Id. at 2818 (“Whatever the reason, handguns are the most popular weapon chosen by Americans for self-defense in the home, and a complete prohibition of their use is invalid.”); see also McDonald v. City of Chicago, No. 08-1521, slip op. at 19 (U.S. June 28, 2010) (“Self-defense is a basic right, recognized by many legal systems from ancient times to the present day, and in Heller, we held that individual self-defense is ‘the central component’ of the Second Amendment right.” (footnote omitted)).

6 U.S. CONST. amend. II (“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.”).

7 Heller, 128 S. Ct. at 2816; id. at 2821 (“[W]hatever else [the Second Amendment] leaves to future evaluation, it surely elevates above all other interests the right of lawabiding, responsible citizens to use arms in defense of hearth and home.”).

November 2010] “THE PEOPLE” OF THE SECOND AMENDMENT 1523 “members of the political community.”8 Thus, in one motion, Heller both constitutionalizes self-defense and limits it to a particular subset of persons within the country’s territorial boundary.9 In so holding, Heller interjects itself into a long, complicated relationship between citizenship and gun rights.

Currently, federal law bans firearm possession by temporary immigrants10 and the undocumented,11 and firearm offenses are amongst the crimes that can lead to the deportation of legal permanent residents.12 The several states have varying prohibitions on 8 Id. at 2790.

9 See Akhil Reed Amar, Heller, HLR, and Holistic Legal Reasoning, 122 HARV. L.

REV. 145, 165–66, 187–88 (2008) (comparing various Justices’ interpretations of words ‘people’ and ‘militia’ as used in Second Amendment in their opinions in Heller); Kenneth A. Klukowski, Citizen Gun Rights: Incorporating the Second Amendment Through the Privileges or Immunities Clause, 39 N.M. L. REV. 195, 247 (2009) (“Now in the Supreme Court’s sole examination of the Second Amendment, the Court speaks of it as a right of citizens.”).

10 The Immigration and Nationality Act, codified in Title 8 of the United States Code, delineates several classes of persons: citizens, legal permanent residents, nonimmigrants, and persons who are unlawfully present. See, e.g., 8 U.S.C. § 1101(a)(3) (2006) (defining “alien”); id. § 1101(a)(15) (defining “immigrant”); id. § 1101(a)(20) (defining “lawfully admitted for permanent residence” status); id. § 1101(a)(26) (discussing eligible “nonimmigrant[s]”). Throughout this article, I use the general term noncitizens to apply to any person who is not a citizen of the United States. The term “temporary immigrant” may be used to refer to nonimmigrants, who are persons permitted in the United States for temporary residence.

11 Please note that whenever possible, I will use the term “undocumented immigrants” or “undocumented persons” to refer to those commonly referred to as “illegal aliens.” I am cognizant of the pejorative implications of the term “alien,” which emphasizes the assumed foreignness and difference of otherwise law-abiding persons living in the United States. 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.”). Moreover, undocumented presence is not necessarily a criminal violation, and determinations of unlawfulness generally require adjudication after evidentiary presentment and consideration of exceptions to unlawful presence by an immigration judge. See 8 U.S.C. § 1182(a) (2006) (defining “[c]lasses of aliens ineligible for visas or admission”); id. § 1182(a)(6)(A)(i) (“An alien present in the United States without being admitted or paroled, or who arrives in the United States at any time or place other than as designated by the Attorney General, is inadmissible.”); id. § 1229(a) (detailing procedure for initiating removal through service of written notice to appear); id.

§ 1229b(b) (defining eligibility for cancellation of removal and adjustment of status for “certain nonpermanent residents”); id. § 1253(a)(3) (permitting suspension of penalty for failure to depart under certain circumstances); Padilla v. Kentucky, 130 S. Ct. 1473, 1488–89 (2010) (Alito, J., concurring) (discussing complexities in determining whether any particular noncitizen is removable); State v. Martinez, 165 P.3d 1050, 1057 (Kan. Ct. App.

2007) (noting that ongoing presence in United States is not crime for individual without authorization who has not been previously deported).

12 18 U.S.C. § 922 (2006); see also Pratheepan Gulasekaram, Aliens with Guns: Equal Protection, Federal Power, and the Second Amendment, 92 IOWA L. REV. 891, 894–96 (2007) (summarizing restrictions on “alien” gun ownership).

1524 NEW YORK UNIVERSITY LAW REVIEW [Vol. 85:1521 noncitizen possession and use.13 However, immigrants seeking naturalization must swear to bear arms on behalf of the nation if necessary before obtaining citizenship14 and are rewarded with a faster path to citizenship if they enlist on behalf of the United States.15 So while federal and state policies bar or regulate noncitizen firearm possession in several ways, they also incentivize and encourage it in specific and important instances. In short, there is no clear background rule or practice with regard to firearm possession by noncitizens.

This Article examines the historical, constitutional, statutory, and political relationship between firearms and citizenship. To provide a comprehensive analysis of citizenship and firearms, including state and federal laws, this Article will explore the link between guns and citizenship as both an historical and legal narrative and a doctrinal and theoretical conundrum. It argues that, although the Second Amendment’s text provides no basis for limiting arms bearing to citizens, states and the federal government have restricted noncitizen possession throughout the nation’s history to maintain racial and citizenship-based supremacy. Against this backdrop, and in comparison to other rights associated with citizenship, the right of armed selfdefense posited by Heller cannot coexist with the restriction of “the people” of the Second Amendment to citizens.

This Article will highlight the link between arms regulation and those individuals considered lesser members of the American polity.

In a telling passage from his seminal article on the Second Amendment, Professor Sanford Levinson writes “[t]here is strong evidence that ‘militia’ [as used in the Second Amendment] refers to all of the people, or at least all of those treated as full citizens of the community.”16 His discomfort with an unqualified reference to “all people” or even “all citizens” is indicative of the ambiguities and hypocrisies inherent in the field. For example, colonial American law ensured that even many free blacks were kept disarmed.17 Similarly, black soldiers returning from the Civil War18 and from World War I were disarmed 13 Gulasekaram, supra note 12, at 895 & nn.11–14.

14 8 U.S.C. § 1448(a) (2006) (establishing elements of naturalization oath).

15 8 U.S.C. § 1439(a) (2006) (setting out requirements for acquiring naturalization through service in armed forces).

16 Sanford Levinson, The Embarrassing Second Amendment, 99 YALE L.J. 637, 646–47 (1989) (emphasis added).

17 See Robert J. Cottrol & Raymond T. Diamond, The Second Amendment: Toward an Afro-Americanist Reconsideration, 80 GEO. L.J. 309, 332 (1991) (“The racial restriction in the [Uniform Militia Act of 1792] indicates the unrest the revolutionary generation felt toward arming blacks and perhaps the recognition that one of the functions of the militia would indeed be to put down slave revolts.”).



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