Stanford Law Review Online: Of Arms and Aliens
posted by 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.
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.