Does the Second Amendment Protect Non-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 […]

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