Stanford Law Review Online: Of Arms and Aliens

Stanford Law Review

The Stanford Law Review Online has just published a Note by Anjali Motgi entitled Of Arms and Aliens. Ms. Motgi examines, in light of the Newtown tragedy in December, how the Second Amendment has continued to fuel debate over a topic of national importance: the rights of illegal immigrants.

Still, the questions that compelled the Tenth Circuit not to touch the Second Amendment issue—including whether gun ownership is a “private right[] not generally denied aliens, like printing newspapers or tending a farm,” or is, like voting, limited to citizens—must one day be answered. Meanwhile, district courts have offered their own analyses of the meaning of “the people.” And this issue is one that could potentially align normally opposed constituencies: conservatives who seek to prevent government abuse by supporting the fundamentality (and therefore the expansive scope) of the Second Amendment as an individual right, and progressives who seek to expand our notion of community by increasing the panoply of rights to which immigrants have access.

She concludes:

Behind all of this dwells the idea that we are a “people,” a notion that undergirds not just diverse areas of American jurisprudence but also our public imagination. Bracketing the controversy over what the Second Amendment protects—possession of semiautomatic assault rifles and large stores of ammunition or something less—to consider the co-occurrence of the Fourth Circuit ruling in Carpio-Leon and the Sandy Hook tragedy raises a peculiar juxtaposition around the “who” of this right: is a father who keeps a rifle at home to protect his wife and three children, or a ranch hand who carries a gun to guard farm animals against predators, less a member of “the people” than a suburban divorcée with a passion for trips to the shooting range? Whatever the Founders meant in drafting the Second Amendment, it seems improbable that they foresaw that it would become a locus for public dialogue about the boundaries of the national community.

Read the full article, Of Arms and Aliens at the Stanford Law Review Online.

You may also like...

2 Responses

  1. Bella Hartz says:

    Dear Ms. Motgi,

    Your article was well-written and researched, with one exception. You wrote:

    “The massacre of schoolchildren by assault rifle…”

    Law enforcement and news agencies reported that early suggestions of the use of an assault rifle/weapon were inaccurate. Please consider changing the wording after you check the list of weapons used at Sandy Hook (which does include a rifle and handguns). Thanks!

    [Police have identified Lanza’s gun as an M4-style carbine made by Bushmaster, specifically the Bushmaster XM15-E2S. Bushmaster explains that designation this way (emphasis added): “XM for Experimental Model, 15 for semi-automatic and E2S is second generation receivers with added reinforcing.” Not only is this gun not “a fully automatic weapon”; it did not even qualify as an “assault weapon” under Connecticut law (or under the federal “assault weapon” ban that expired in 2004, which used similar criteria). Police say Lanza’s mother purchased it legally in Connecticut.]

  2. Joe says:

    Another place where alienage raises question is campaign finance. Another interesting 2A avenue to explore are the rights of Native Americans:

    The author “was selected to serve on her tribe’s Supreme Court, becoming the first woman and youngest Justice of the Supreme Court of the Citizen Potawatomi Nation of Oklahoma. In 2010, she was elected as Chief Justice.”

    Puerto Rico is another interesting question here. Given Justice Sotomayor’s own student scholarship, that might be of particular interest to her if the question arises.