Person vs. People

Gerard Magliocca

Gerard N. Magliocca is the Samuel R. Rosen Professor at the Indiana University Robert H. McKinney School of Law. Professor Magliocca is the author of three books and over twenty articles on constitutional law and intellectual property. He received his undergraduate degree from Stanford, his law degree from Yale, and joined the faculty after two years as an attorney at Covington and Burling and one year as a law clerk for Judge Guido Calabresi on the United States Court of Appeals for the Second Circuit. Professor Magliocca has received the Best New Professor Award and the Black Cane (Most Outstanding Professor) from the student body, and in 2008 held the Fulbright-Dow Distinguished Research Chair of the Roosevelt Study Center in Middelburg, The Netherlands. He was elected to the American Law Institute (ALI) in 2013.

You may also like...

4 Responses

  1. Howard Gilbert says:

    However, in the context where a well regulated militia is necessary to the security of a free state, doesn’t it seem reasonable to assume that “the people” in the second half of the amendment are the same people (the unregulated militia, citizens who have reached the age of military service) who may be called on to satisfy the first half of the amendment. Illegal aliens are not part of the unregulated militia, therefore they may not be among the people whose right to bear arms may not be infringed.

  2. Shag from Brookline says:

    Just imagine Barbra Streisand singing “People, who need persons, are … ” or “Persons, who need people, are …. “

  3. Matt says:

    doesn’t it seem reasonable to assume that “the people” in the second half of the amendment are the same people (the unregulated militia, citizens who have reached the age of military service) who may be called on to satisfy the first half of the amendment. Illegal aliens are not part of the unregulated militia

    I’m not sure if it goes directly to the point Howard Gilbert is trying to make or not, but undocumented immigrants in the U.S. can be drafted and are even required by law to register with the selective service in many cases, so given the ways the role of a “well regulated militia” has evolved w/ the development of a standing military, it is at least now no longer the case that undocumented immigrants are not among the group who might be “called on”.

  4. Ryan says:

    The Constitution is actually fairly deliberate in this regard. Where simply the plural of “person” is indicated, the term “persons” is used — e.g., art. I, § 2, cl. 3; art. I, § 7, cl. 2; art. II, § 1, cl. 3; amd. XII; amd. XIV). The term “people,” by contrast, is always preceded by the definite article “the” (i.e., “the people”) — see, the Preamble, art. I art. I, § 2, cl. 1; the amendments identified in the text of the post and amd XVII (the Fourth Amendment actually uses both terms, “the people” in describing who is entitled to the rights and “persons” in describing the contents of the warrant requirement). This strikes me as pretty persuasive evidence that “the people” was used in a term of art sense, which is consistent with how the Supreme Court has interpreted the term (e.g., U.S. v. Verdugo-Urquidez, 494 U.S. 259 (1990)).

    I agree that the incorporation issue presents some difficulties but keep in mind that Thomas’s P-or-I-based concurrence in McDonald leaves the incorporation of Second Amendment rights as applied to non-citizens an open question. Of course, the Fourth Amendment has been incorporated through the Due Process Clause, which raises the difficulty you identify, but I think this may be more of a problem with due-process incorporation than with the interpretation of “the people” as used in the Bill of Rights as not referring to every “person.”