The 4th Circuit, joining the 5th, 8th, and 10th Circuits, holds that “illegal aliens” are not protected by the 2nd Amendment.
The court had an interesting discussion as to who “the people” are for purposes of the Second Amendment:
The Supreme Court’s precedent is therefore not clear on whether “the people” includes illegal aliens.
Here, we need not limit our analysis to the scope of the term “the people” and thereby become enmeshed in the question of whether “the people” includes illegal aliens or whether the term has the same scope in each of its constitutional uses.*
*Were we to limit our analysis to the scope of the term “the people,” we would also have to recognize that groups like women, Native Americans, and blacks may not have been part of the political community at the time of the founding but are today within the class that we refer to as “the people.” In this same vein, it was understood that Catholics could be disarmed in England prior to the founding, but again today they are within the class that we refer to as “the people.”
In other words, what a person was in 1787 is irrelevant. Instead, we look to how modern society views a person, which most certainly includes all of those groups.
The court finds that Heller’s holding was limited to law-abiding citizens:
Even though the Heller Court stressed that the core right of the Second Amendment protects law-abiding members of the political community, it did not face a law prohibiting firearms possession by a particular class of persons. Nonetheless, we can employ the historical analysis it prescribed to apply its observations to this case, see Chester, 628 F.3d at 680, and thus to reach the conclusion that we do—that illegal aliens do not belong to the class of law-abiding members of the political community to whom the Second Amendment gives protection.
This issue came up in McDonald v. Chicago. The privileges or immunities clause only applies to citizens. If a right was extended to the states through the Privileges or Immunities Clause, it would only apply to citizens. This was a common argument against using P or I. Though, with the 4th Circuit’s construction, it would be a moot point as only citizens would be eligible for the right to keep and bear arms, in any case.
In fact, Dale Ho of the NAACPLDF argued that the Court dodged a bullet in McDonald by not using P or I because it avoided the thorny issue of limiting rights to citizens.
If advocates of progressive originalism overestimate the likely benefits of revitalizing the Privileges or Immunities Clause, they also underesti- mate the possible pitfalls of charting such a new constitutional course. Reliance on the Privileges or Immunities Clause as the exclusive source of substantive rights protec- tions in the Fourteenth Amendment could reduce constitutional protections for non- citizens, who may be excluded from the provision’s scope, and may also call into question the range of rights currently protected under the Fourteenth Amendment
I wonder how immigrant-rights groups feel about this holding.
Update: David Cohen reminded me of his article about McDonald’s Paradox that addresses just that issue (see here, here, and here).