Author: Abby Vorhees*
73 Am. U. L. Rev. 929 (2024).
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Under current federal law, undocumented immigrants remain unable to access one of the most fundamental rights contained within our Constitution: the Second Amendment right to keep and bear arms. Several undocumented immigrants have challenged the constitutionality of the federal prohibition (18 U.S.C. § 922(g)(5)(A)), resulting in a three-way circuit split on whether undocumented immigrants are protected by the Second Amendment. The Supreme Court, however, has remained silent on the issue, leaving undocumented immigrants unprotected.
The Supreme Court’s 2022 Second Amendment decision, N.Y. State Pistol & Rifle Ass’n v. Bruen, upended the traditional method of constitutional review, means-end scrutiny, in favor of a textual-historical approach to Second Amendment challenges. This Comment applies the two-step approach elucidated in Bruen, arguing that (1) undocumented immigrants are part of “the people” and thus are protected by the plain text of the Second Amendment and (2) that the nation’s history of firearm regulation is not consistent with a categorical ban on undocumented immigrants’ firearm possession. Accordingly, this Comment concludes that the Supreme Court should strike down § 922(g)(5)(A) as violative of the Second Amendment.
* Junior Staffer, American University Law Review, Volume 73; J.D. Candidate, American University Washington College of Law, 2025; B.A., Political Science, University of South Carolina, 2020.
