“The People” of the Second Amendment: Citizenship and the Right to Bear Arms
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.