Introduction
Over the past two years, “loyalty-based” gun laws have taken on an importance they have not had since the Revolutionary period, when some colonial governments sought to disarm sympathizers to the British Crown.
This renewed interest is the product of the Supreme Court’s New York State Rifle & Pistol Association v. Bruen decision, which directed courts to seek historical analogues when assessing the constitutionality of modern gun regulations.
Post-Bruen, those Founding-era restrictions have been especially prevalent in Second Amendment cases challenging the federal prohibition on possession by unlawfully present noncitizens, codified in 18 U.S.C. § 922(g)(5).
On closer examination, however, this analogy is a poor fit. This Piece explains what seems to have eluded multiple federal jurists: The undocumented immigrants of today are not the Tories of the American Revolution.
The stakes of this misguided comparison are high, and clarifying the disconnect is pressing. In the twelve years between District of Columbia v. Heller
and Bruen, federal courts uniformly upheld the federal ban on possession by unlawfully present noncitizens using a tiers of scrutiny approach.
Post-Bruen, however, disagreements over the constitutionality of gun laws conditioned on immigration status are beginning to surface in lower federal courts.
Moreover, the constitutional rights of noncitizens, especially their Bill of Rights protections, have been a recurring theme in recent Supreme Court terms.
Not only do immigrant gun decisions threaten noncitizens’ access to gun rights, but, more importantly, the excision of noncitizens from the Second Amendment portends diminished and segregated constitutionalism for noncitizens across the board.
This Piece proceeds as follows. First, it explains why lower courts have sought guidance from Founding-era Loyalist disarmament laws and provides examples of those historical statutes. It then explains the relevance of the arguments in, and outcome of, the Supreme Court’s most recent Second Amendment case, United States v. Rahimi, to the question of noncitizen disarmament. Third, this Piece explains why those loyalty-based historical laws are not analogous to modern federal laws banning unlawfully present noncitizens from possessing guns, focusing on the disjuncture between the respective laws’ purposes and mechanics. It notes, however, that those laws may yet be relevant to assessing the constitutionality of other contemporary federal gun regulations. Finally, this Piece clarifies the stakes of this misguided analogy in Second Amendment cases, arguing that it contributes to diminished and second-class constitutionalism for all noncitizens across other fundamental liberties and protections.
I. The Second Amendment and Historical Analogues
In Heller, the Supreme Court held for the first time that the Second Amendment is an individual right grounded in self-defense.
Despite this novel interpretation, most courts in the wake of Heller still upheld the majority of challenged statutes, applying the traditional tiers of scrutiny approach to constitutional analysis.
In the 2022 Bruen decision, however, the Court expressly abandoned the tiers of scrutiny approach, and prescribed a “text and history” focused methodology instead.
As the Bruen majority instructs, the government must justify present-day gun laws by providing historical analogues that addressed similar societal problems in similar ways.
Faithful to Bruen’s instructions, courts deciding the constitutionality of modern gun laws have sought guidance from a variety of arms restrictions from England as well as from the Founding era. In cases challenging prosecutions under the federal ban on possession by unlawfully present noncitizens, the government and courts have, in several cases, sought to analogize the federal prohibition to enactments during the Revolutionary period that sought to disarm Loyalists to the British monarchy.
Generally, these Revolutionary-period laws authorized officials to disarm individuals who did not make attestations of fidelity to the newly independent colonies or otherwise evinced their disagreement with the struggle for independence.
For example, in 1776, the colony of Massachusetts sought to disarm those persons “notoriously disaffected to the cause of America, or who refuse to associate to defend by arms the United American Colonies, against the hostile attempts of the British fleets . . . .”
Similarly, in 1777, Virginia required all freeborn male inhabitants of the state to take an oath of allegiance to the state and directed commanding officers of the militia to disarm any “recusants” who declined the affirmation.
Pennsylvania’s government in both 1776 and 1779 authorized commanding officers of the militia to take arms from those “suspected to be disaf[f]ected to the independ[e]nce of this state.”
In addition to the several lower federal courts invoking these historical statutes, the relevance and import of the Loyalist laws prominently featured in briefing and argument for Rahimi, concerning the federal gun possession ban on those subject to a domestic violence restraining order.
At the Founding and in the post-Ratification period, there were no laws that restricted firearm possession by domestic violence abusers.
As such, Rahimi maintained that 18 U.S.C. § 922(g)(8) needed to be struck down as it lacked a sufficient historical tradition.
Former U.S. Solicitor General Elizabeth Prelogar countered that historical regulations, including the Loyalist disarmament statutes, evinced a general valence toward disarming those who were provably dangerous.
Like laws disarming Loyalists to the British Crown, the federal government argued, the modern domestic violence ban deprived firearms from those unfit to wield them.
Ultimately, an 8-1 majority of the Supreme Court rejected Rahimi’s challenge and upheld the federal prohibition.
Common sense and the consequences of letting Rahimi possess a gun seem to have been on the minds of several Justices.
The Court appeared uncomfortable reading the Second Amendment to protect the arms-bearing rights of the likes of Rahimi, who had an extensive history of violent interactions with his domestic partner (some involving guns).
Nevertheless, the majority also took pains to tether its conclusion to historical regulations rather than common sense and consequences. The Court cited the “going armed” laws of the English Crown
and the “surety” laws of England and, later, the Founding period
to ground its conclusion that the government may, consistent with the Second Amendment, disarm individuals who pose a credible threat to the physical safety of others.
Three concurring Justices conspicuously added opinions to assure readers that the result was a straightforward application of Bruen’s originalist, history-focused interpretation.
Because the majority focused on “going armed” and “surety” laws, however, the Court found it unnecessary to consider the Loyalist disarmament regulations that had been discussed prominently in the Fifth Circuit opinion and in briefing and oral argument for the Supreme Court.
Despite the Court’s inattention to the Loyalist disarmament laws in Rahimi, the Loyalist gun laws of the Founding era feature prominently in other pending and future Second Amendment claims in federal and state courts.
This is especially true for future § 922(g)(5) challenges.
Several federal courts, including the Eleventh Circuit, have expressly and exclusively relied on Founding-era British Loyalist disarmament laws as a basis for upholding the modern-day prohibition on unlawfully present noncitizens’ firearm possession.
In those cases, judges have opined that the historic exclusions represented the disarmament of those who were disloyal to America and outside the nation’s political community, claiming the same to be true of unlawfully present persons today.
Unlawfully present noncitizens, in their view, are “threatening or suspect” to the prevailing governmental and social order, just as Loyalists were in 1776.
As with the domestic violence restraining order prohibition upheld in Rahimi, it seems clear that most federal courts are skittish about recognizing the Second Amendment rights of noncitizens, and especially unlawfully present noncitizens.
II. British Loyalists and Unlawfully Present Noncitizens
In response to this recent focus on Loyalist disarmament laws, this Piece maintains that the loyalty-based disarmament of the Founding era cannot justify present-day immigration status restrictions under Bruen and Rahimi ’s methodology for three reasons. The first two reasons implicate the comparative purposes and mechanics between historical and modern regulations. Both Bruen and Rahimi treat these factors as dispositive.
Bruen relieved lower courts of the obligation to find a “dead ringer” or “historical twin,”
instead requiring them to seek an analogue that matches the “how and why” of the contemporary regulation.
Rahimi clarified that Bruen’s analysis requires considering whether the modern regulation “is consistent with the principles that underpin our regulatory tradition.”
Beyond the relevant motivating principle, Rahimi further explained that the respective manner and scope of statutory operation matters in Second Amendment analysis.
First, the “particular problem”
presented by Loyalists and the reasons Founding-era jurisdictions sought to disarm them cannot be transported to noncitizen disarmament today. Identifying as a Loyalist during the Revolutionary War meant rejecting the legitimacy and existence of the new nation as a sovereign entity. By contrast, both the general noncitizen and the unlawfully-present populations are comprised nearly exclusively of those who have left a home country and migrated precisely because they hope to integrate into and contribute to the civic, social, and economic life of a thriving nation.
Second, the Founding-era restrictions were conditioned on choice and continuing conduct. By contrast, § 922(g)(5) and other noncitizen firearms regulations automatically restrict gun ownership based on immigration status and categorically exclude without exception.
In addition to the respective “why” and “how” of the statutes, a third concern, tied to Loyalists’ membership in colonial communities, disconnects that unique historical group from the unlawfully present of today. Loyalists who resided in the colonies during the Revolutionary War and Founding period were treated as part of the political community, not as outsiders. Thus, neither the ability to politically participate in self-government nor the membership of the individual in the political community has ever been the categorical dividing line for firearm possession.
A. The “Why” of Loyalist and Noncitizen Disarmament
The purpose of Loyalist disarmament laws in the Founding period was not to disarm noncitizens or immigrants or to address the problems of irregular migration. Indeed, the existence of a category of individuals known as “illegally” or “unlawfully present” under federal law would not have been cognizable until after 1875 at the earliest, and not until the late 1900s in the way the term is used in statutes today.
Moreover, to read those early loyalty laws as countenancing immigrant disarmament would be farcical. Many Americans at the Founding were immigrants or descendants of recent immigrants who migrated for economic gain or to escape various forms of persecution.
Rather, Loyalist disarmament laws were the emerging nation’s proto-national security laws. They sought to smoke out existential threats to the cause of independence. A British sympathizer with a firearm living among colonial residents fighting for independence presented a national security threat, which then dictated their fitness for firearm possession during wartime.
In contrast, § 922(g)(5)’s categorical ban on unlawfully present persons possessing firearms is not premised on allegiance (or lack thereof) to the United States or support for the country as a sovereign nation. As a practical matter, noncitizens, and perhaps especially unlawfully present noncitizens, are likely to be among those most committed to the nation’s continued flourishing.
Indeed, snapshots of the unauthorized population and deportation trends today suggest that very few noncitizens present national security threats.
Instead, the overwhelming majority of unlawfully present noncitizens are fleeing economic deprivation, violence, and persecution.
Thus, far from resisting a new political order, their existential priority is to integrate into the economic and civic life of a flourishing and stable nation.
Finally, unlike during the Revolutionary period, the United States is not in active military conflict with the nations from which the overwhelming majority of unlawfully present noncitizens, and certainly those who have been subjects of post-Bruen (g)(5) prosecutions, hail.
If the United States were to be involved in such a conflict today, one would assume a variety of national security and terrorism laws—the more closely-related descendants of the Loyalist disarmament laws—would suffice to disarm and prosecute present-day noncitizens who present an existential threat.
B. The “How” of Loyalist and Noncitizen Disarmament
If the “why” of Loyalist disarmament mismatches with present-day noncitizen disarmament, the “hows” of the respective prohibitions fare no better. For comparative purposes, the critical takeaway is that the Loyalist disarmament statutes required conduct and process before disarmament. States disarming Loyalists during the Founding period presented a choice to their residents, asking them to affirm or decline to affirm their allegiance to the emerging Republic.
Importantly, the statutes triggered firearm dispossession only after responsive conduct. As per the language of the various provisions, a Loyalist could avoid disarmament by taking an oath or affirmation; the laws permitted a local official (perhaps the local militia leader) to disarm the Loyalist if they rejected the oath or otherwise expressed disaffection with the cause of independence.
In sum, residents of the newly declared independent colonies could avoid disarmament by affirming that they were not existential threats.
By contrast, contemporary laws that condition firearms possession on immigration status are triggered by migration-related processes or conditions that often occurred years, if not decades, in the past.
Moreover, the assignment of that immigration status, by itself, is disconnected from any finding of a public safety threat or national security concern. This is important because unlawful presence is not necessarily, or even likely, an indicator of criminal activity.
Noncitizens caught and apprehended by immigration officials while entering the country unlawfully might be charged and prosecuted under relevant immigration laws.
But an even higher portion of the unlawfully present population entered lawfully, later committing the administrative violation of overstaying a visa.
This class of unlawfully present noncitizens cannot be subject to criminal liability based on their immigration status or means of entering the country.
Further, § 922(g)(5) cannot be overcome by a later evidentiary showing or oath. Most obviously, nothing in modern noncitizen gun regulations, including in § 922(g)(5), provides an exception for noncitizens who can demonstrate or attest to loyalty to the United States.
The disjuncture between the federal criminal ban and loyalty to the nation is evidenced by the tens of millions of noncitizens whom the provision does not cover. Lawful permanent residents, for example, do not take loyalty oaths or make attestations of allegiance during their immigration process, and yet federal law does not criminalize their firearm possession.
In addition, noncitizens, including unlawfully present noncitizens, have borne arms on behalf of the nation in times of war, engaging in the most high-stakes form of national service and sacrifice.
Yet, despite the clear evidence of service and loyalty in defense of the nation, as per § 922(g)(5), some of those noncitizens could be disarmed for personal gun possession in defense of self and family.
To the extent an active statement of allegiance remains relevant to gun possession, many noncitizens—including huge swaths of the unlawfully present population—regularly pledge their allegiance to the United States. For example, unlawfully present noncitizens brought to the United States as children undoubtedly would have recited the Pledge of Allegiance countless times.
Notably, outside the context of national security and core governmental integrity, federal law rarely deprives noncitizens of constitutional rights as a penalty for criminal prosecution. The federal prohibition on political expenditures by nonpermanent resident noncitizens is illustrative.
Unlike the right to bear arms, which the Court maintains is a right of armed personal defense from private violence,
the diminution of noncitizens’ First Amendment rights in the campaign finance context is premised on preserving the integrity of the state.
In other words, the Court has permitted Congress to criminalize noncitizens’ speech when that prohibition is tied directly to protecting citizens’ capacity for self-government from undue or distortive influence from foreign sources.
Like the disarming of Loyalists, the expenditure restriction might be understood as a measure intended to preserve the Republic. And even then, these present-day expenditure restrictions rest on dubious constitutional ground in light of the Court’s more recent expansion of free expression rights in campaign finance.
Similarly, in modern constitutional jurisprudence, the Court has expressly rejected forced attestations of allegiance as part of everyday civilian life.
In the immigration realm, Congress did away with provisions of the immigration code that premised naturalization on noncitizens’ promising to be loyal prior to their applications for citizenship.
C. Loyalists, Unlawfully Present Noncitizens, and Membership in a Political Community
Even if the Loyalist disarmament statutes fit poorly with the “how” and “why” of contemporary noncitizen gun bans, some courts have suggested that the relevant point of comparison is the status of the prohibited category of individuals vis-à-vis the political community of the nation.
As that argument goes, Loyalists could be disarmed because they were considered outsiders to the core members of the newly independent colonies.
Similarly, those courts maintain, unlawfully present noncitizens are outsiders to the political community of the United States, as they generally are barred from participating in elections, holding office or positions of public trust, and even contributing to candidates and political campaigns.
The fundamental flaw with this reasoning, however, is that, contra courts that have suggested that the ban on Loyalists equates to a ban on those outside the political community, the Founding-era laws instituted an intra-political community distinction. As Professor Amanda Tyler’s historical research reveals, “as the Revolutionary War unfolded, the dominant understanding viewed those disaffected to the American cause as squarely within the political community of rights-bearing members.”
In other words, those laws did not create a hard line between core members of the political community (who we might today deem citizens and putative citizens) and outsiders/foreigners (who we might today deem noncitizens, especially unlawfully present ones). As such, early American history is devoid of precursors that doled out gun rights based on membership in political bodies.
Moreover, if membership in the political community was the dividing line for the Second Amendment, the Loyalist disarmament laws would implicate more than § 922(g)(5)’s ban on unlawfully present persons. All noncitizens, including long-term permanent residents, are legally “outside” the political community in the sense that they generally cannot vote in elections, hold many elected offices, serve on juries, or contribute to candidates and campaigns as freely as citizens can.
Thus, a theory based on the (inaccurate) presumption that Loyalists were considered outsiders would countenance a far-reaching set of federal and state restrictions on noncitizens’ constitutional rights beyond just firearms rights.
D. Loyalist Disarmament and Other Federal Firearm Prohibitions
Importantly, rejecting the relevance of Loyalist disarmament laws to § 922(g)(5) does not mean completely disregarding those historical regulations. Loyalist disarmament statutes arguably remain relevant for evaluating the viability of other present-day gun restrictions that implicate oath taking and other indicia of allegiance. For example, lawful permanent residents perform the Oath of Allegiance as a final step before naturalizing into citizens,
and anyone, including noncitizens, joining the United States military takes the Oath of Enlistment.
These present-day attestations more closely resemble the loyalty attestations of the Revolutionary period. As such, two other § 922(g) disqualifications—(g)(6)’s criminalization of possession by those who have been dishonorably discharged from the armed forces and (g)(7)’s criminalization of possession by those who have renounced U.S. citizenship—mimic the ethos and justifications of the Revolutionary-period disarmament statutes.
In short, under Bruen and Rahimi ’s search for historical analogues, the Founding-era disarmament laws might speak to the viability of other federal statutes, just not § 922(g)(5)’s categorical exclusions based on immigration status.
IV. Second Amendment Methodology and the Pitfalls of Misguided Historical Focus
This Piece has thus far argued that judicial attempts to conform Loyalist disarmament statutes to § 922(g)(5) ignore critical “why” and “how” disparities and misconstrue the status of the respective groups. More broadly, this strand of jurisprudence helps demonstrate the significant limitations and unworkability of Bruen, Rahimi, and their history-focused framework as a way to evaluate any contemporary firearms restrictions, including § 922(g)(5).
Beyond the analogical dissimilarities, it bears noting that many status-based regulations enacted during the Founding and post-Ratification eras were expressly white supremacist, race-based firearm prohibitions on enslaved persons, free Black people, and Indigenous people,
produced by a highly constricted electorate.
These groups (all of whom would have been considered noncitizens) posed a “danger” to the exclusively all-white, all-male, propertied class that enacted, enforced, and enjoyed the fruits of then-extant brutal systems of racial subjugation. One of Bruen’s many shortcomings is its failure to grapple with discarded biases and hierarchies of the past, which its methodology inherently invites.
Nevertheless, so long as Bruen’s poorly formulated and malleable methodology governs (even as clarified by Rahimi ), courts must be willing to apply its teachings consistently, even when the subjects of regulation are the politically unpopular group of unlawfully present noncitizens. After all, the right to armed self-defense extolled by Bruen would seem equally important to anyone who might fear for their personal safety from private violence. Many unlawfully present noncitizens have grown up, lived, studied, and worked in this country for decades and share the impulse to protect themselves and their family members.
Of course, other arguments remain to gird the federal ban on possession by unlawfully present noncitizens. As Rahimi reminds us, “The Second Amendment permits more than just those regulations identical to ones that could be found in 1791,”
and good reasons exist to disarm many people, including some noncitizens, given the lethality of firearms and the prevalence of gun violence today.
The Rahimi Court assured that historical regulations support modern laws that disarm individuals who present credible public safety threats.
To the extent the antiquated regulations of the Founding period are of any utility to modern firearms concerns, this approach might be the most sensible use of history.
To be sure, such a general principle also might militate in favor of upholding the criminal ban on possession by at least some unlawfully present persons.
Even so, three observations are in order.
First, the federal courts that have analogized Founding-era loyalty disarmament to § 922(g)(5) have not relied on a broad “dangerousness” principle.
Rather, they have uncritically equated “loyalty” during the Revolutionary War with present-day federal immigration status categories, while ignoring evidence that Loyalists were considered part of the political community. Second, none of the opinions reconcile the fact that unlawful or “illegal” presence would not have been a cognizable immigration status until the late nineteenth century at the earliest, and really only in the mid-to-late twentieth century in the way § 922(g)(5) and other modern regulations use the term.
Indeed, the federal firearms-based deportation law first appeared in 1940, with criminal prohibitions on noncitizen possession first enacted a couple decades later in 1968.
Third, if “dangerousness” is the general principle to be drawn from the historical analogy, it stands to reason that putative risk of harm would factor into the justifications for the present-day regulations. Courts that have equated unlawful immigration status with dangerousness have done so by misguidedly relying on innuendos and stereotypes, without empirical evidence, as forthcoming work details.
Conventional judicial methodology (even under Bruen and Rahimi ) would seem to require something more than fiat and assumption to substantiate the link between the prohibited category and the type of dangerousness that justifies curtailing a constitutional right.
Conclusion
Fundamentally, this Piece is not intended to advocate for the armament of noncitizens. Rather, this Piece highlights yet another instance in which courts have engaged in sloppy reasoning and ill-fitting analogies, which has gone unrecognized because the subjects of regulation are a politically unpopular subgroup of noncitizens.
Such immigration exceptionalism in the obscure and seemingly innocuous case of unlawfully present immigrants’ gun possession rights portends a wider gulf in fundamental constitutional guarantees for much broader swaths of the populace.