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Sunday, February 05, 2023

Law-Abiding People

Last week the Fifth Circuit issued United States v. Rahimi and held that a man subject to a domestic violence restraining order retained his Second Amendment rights. In so holding, the Court said that the references in Heller and other Second Amendment cases to "law-abiding citizens" should not be taken literally as a restriction. Instead, the phrase was just shorthand for describing traditional restrictions on gun ownership in line with the Court's discussion in Bruen.

One implication of this reasoning is that non-citizens have a Second Amendment right. I'm not aware of any tradition of denying aliens the right to have guns, except perhaps in wartime. And I've said before that limiting the Second Amendment to citizens makes no sense under the Court's doctrine on incorporation and given the fact that aliens possess every other freedom in the Bill of Rights. Nevertheless, there are a couple of circuits that have held that people here illegally do not have a Second Amendment right. It seems to me that these cases are erroneous under the Fifth Circuit's reasoning, though the Supreme Court may weigh in on Rahimi.

Posted by Gerard Magliocca on February 5, 2023 at 08:43 AM | Permalink


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