The Second Amendment as a “Protective Right” and the Scope of “The People” in the Second Amendment

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6 Responses

  1. Patrick J. Charles says:


    I don’t see this opinion as relegating the Heller right to armed self defense in the home as a “second-class” right in the least bit. One can interpret an “affirmative right” one of two ways, depending on you look at it. While I would not classify the Second Amendment as a “protective right,” the thrust of the holding was that undocumented or illegal aliens are not afforded Second Amendment rights.

    This holding is consistent with framing-era practice in that arms bearing was limited to those whom had allegiance to the nation. How one can claim an undocumented or illegal alien has allegiance to the nation, temporary or perpetual, is beyond me. One must submit to a nation’s laws completely to be afforded full constitutional protections. As Vattel’s treatise makes clear, which the founding generation borrowed from, the law of nations stipulates that all aliens are afforded life, personal property, and some due process rights. All other rights can be mitigated or limited dependent upon the will of the sovereign nation. I would say the court’s holding is consistent with Vattel.

    Let us not forget, there is a robust historical pedigree on limiting arms bearing to citizens only. Whether requiring more from aliens, undocumented or lawful, access to firearms is a prudent public policy is another matter for debate. However, this does not deter from the lawfulness or constitutionality of such laws.

  2. Josh Blackman says:

    If the court had written something along the lines you did–that in the framing era the right to keep and bear arms was limited to those who had allegiance to the nation, I would not have much of an objection. That analysis would have been consistent with Heller’s methodology, and consistent with its holding. The court did not do that.

    In other to get around a precedent that is clearly in tension, Verdugo-Urquidez, the court fashioned a distinction that is not grounded in history, and conflicts with Heller’s holding that the 2nd Amendment is a “pre-existing,” not an affirmative (whatever that is) right.

  3. Josh Blackman says:

    To elaborate on my previous comment, I think the court made the move it did–by distinguishing protecting and affirmative rights–in order to set back the tide of comparisons with the First and Fourth Amendment. This has not sit well with a number of judges who rejected this analogy. This panel, it seems, was trying to think of a way to pare back and weaken this analogy. Protective/Affirmative rights isn’t going to cut it. The better argument sounds in the Heller and McDonald dissents–that this right is dangerous, unlike any other rights. I don’t buy this argument either. In my article, I address at some length why this right is not different than all other rights.

    Going forward, I think we will see many other Judges fashion more persausive tests why the Second Amendment should not be treated equally to other rights.

  4. Gerard Magliocca says:

    On a different note, given that Pyler v. Doe holds that illegal aliens are “persons” for purposes of the Equal Protection Clause, does it make sense that they are not part of the “people” for purposes of the Second Amendment? (I haven’t had a chance to read the opinion yet.)

  5. Josh Blackman says:

    Very good point. I’m pretty sure this is going en banc, if nothing else to clarify how it may affect other provisions of the Constitution as applied to undocumented persons.

  6. Patrick J. Charles says:


    Great question! You are correct that issues affecting “life, liberty, and property” are issues that affect all persons. In this regard, the Fourteenth Amendment is consistent with international law treatises circa 1791 and 1868 (the two most important dates to consider). Perhaps this is the major problem with Second Amendment incorporation through the Due Process Clause.

    Certainly, the Second Amendment must have fell under “life” and “liberty” for the four justices that incorporated the Second Amendment through the Due Process Clause. Taking this is true, it seems to make common legal sense that armed self-defense in the home with a handgun would apply to all, right? It is most certainly a contradiction in jurisprudence for illegal aliens to fall under the Fourteenth Amendment in Plyer v. Doe, yet not fall in the constraints of the Second Amendment.

    Despite this fact, I think the Supreme Court will somehow differentiate the Second Amendment’s affirmative and preexisting right to bear arms with the holding in Plyer. The historical pedigree of limiting arms bearing to members of the political community and the doctrine of allegiance is too robust for any court to ignore. At least that is my two-cents.