Do constitutionally protected rights like the Second Amendment apply to just citizens or anyone?

This is probably one of those topics that we can debate for ages and, if you’re like me, we can take either side of the debate and defend it just fine. It’s a strange position to be in.

On the one hand, the Constitution protects rights for the American people, which generally means citizens. On the other hand, the Bill of Rights doesn’t create rights. It preserves the rights that are inherent in being a free man or woman.

This is a topic that popped up at the Volokh Conspiracy recently.

The Second Amendment provides “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” The Framers used the word “people,” and not the word “citizen.” Does this right apply only to U.S. citizens, or does it apply to all people in the United States? Since Heller, the circuit courts have split on this question. In 2015, I wrote about Judge Wood’s Seventh Circuit opinion, which found that aliens were protected by the Second Amendment.

On Thursday, a Second Circuit panel declined to resolve this issue in United States v. Perez. However, Judge Menashi concurred, and found that only citizens are protected by the Second Amendment. This conclusion follows from Heller, which repeatedly used the word “citizen.”

In Heller, the Supreme Court spoke of “the right of law-abiding, responsible citizens to use arms in defense of hearth and home.” District of Columbia v. Heller, 554 U.S. 570, 635 (2008). As the court recognizes, illegal aliens are “[e]xcluded from participation in our democratic political institutions.” Ante at 8. This is not simply a matter of whether illegal aliens fail to be “law-abiding” and “responsible.” It means they are not “citizens”—”members of the political community” to whom “‘the right of the people to keep and bear Arms'” belongs. Heller, 554 U.S. at 576, 580 (quoting U.S. Const.amend. II). The court strains to avoid this key point from Heller. I would instead join those circuits that have straightforwardly concluded that illegal aliens cannot invoke the right of the people to keep and bear arms under the Second Amendment. I concur only in the judgment.

Judge Menashi explains that at the time of the framing, the right to keep and bear arms extended to “members of the political community.”

For me, when the question comes to illegal aliens, the subject becomes far murkier. When we’re discussing resident aliens who have entered the country lawfully, there’s no question that they should enjoy the same Second Amendment protections you and I enjoy.

With illegal aliens, though, their mere existence within these borders constitutes an ongoing commission of a crime. We generally don’t accept the possession of a gun in the hands of a criminal during the commission of a crime as being a Second Amendment issue.

So while they might have the right to keep and bear arms as human beings, the fact that they’re here illegally doesn’t so much negate them as it renders them irrelevant for legal purposes.

But then again, I’m not an attorney, much less a federal court judge.

What do you think? Do illegal aliens have Second Amendment rights, or do they forfeit those rights when they enter the United States illegally?