A new Working Paper by Akhil Rajasekar entitled Of Pistols and Polities: Illegal Aliens and the Second Amendment is available. Akhil holds a J.D. from Harvard Law School and was a William H. Rehnquist Fellow at Cooper & Kirk. The paper’s abstract reads:
New York State Rifle & Pistol Ass’n v. Bruen placed on the government the affirmative burden of demonstrating that any regulation of the right to keep and bear arms is consistent with this Nation’s historical tradition of firearms regulation. That command has invited a great deal of litigation challenging the federal possession bans in 18 U.S.C. § 922(g). Within § 922(g), subsection (g)(5)’s prohibition on the possession of firearms by aliens illegally present in the United States is special. It at once raises the question of what it means for one to be part of “the people” and what, if any, constitutional valence that status carries. This Article defends the constitutionality of § 922(g)(5) at each of the analytical steps that Bruen announced. Part I argues that illegal aliens do not fall within the Second Amendment’s textual protection in the first place because they are not among “the people” to whom the right to keep and bear arms extends by its terms. “The people” is a phrase best understood as synonymous with the national citizenry, and one that, even read more capaciously, cannot reach those whose presence in the polity arises from a willful violation of the very laws by which the polity regulates its membership.
Part II argues that, even assuming that the Second Amendment’s plain text covers illegal aliens, § 922(g)(5)’s categorical disarmament survives Bruen’s historical-tradition inquiry. From the disarmament of disaffected subjects at common law, through the colonial laws categorically disarming Indians, the Continental Congress’s recommendations for disarming loyalists, and the later state and federal laws restricting firearms possession by noncitizens, a longstanding and unbroken tradition has authorized the disarmament of disaffected strangers to the polity whose loyalties to it are presumptively absent or questionable. Section 922(g)(5) satisfies both aspects of sound analogical inquiry (the how and the why) into that tradition, and its constitutionality thus rests on a historically grounded understanding of the American political community.