Loyalty Disarmament & the Undocumented by Pratheepan Gulasekaram

Abstract

Over the past year, “loyalty-based” gun laws have taken on 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 NYSPRA v. Bruen decision, which directed courts to seek historical analogues when assessing the constitutionality of current 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. On closer examination, however, this analogy is ill-fit. Indeed, to the extent historical laws disarming British Loyalists remain relevant, they may presage other status-based prohibitions in § 922(g) conditioned on breaking oaths and allegiance to the United States. Courts are mistaken however, to equate the disarmament of those who were existential threats to the emerging Republic, to present day unlawfully present noncitizens, a status that did not exist until the late 19th or mid-20th centuries. The stakes of this misguided comparison are high. Not only does it threaten access to a fundamental right under Bruen‘s methodology, but more importantly it portends diminished and segregated constitutionalism for noncitizens across the board.

KJ