The Citizenship Clause Implicates the Second Amendment

On April 1, the Supreme Court will hear argument in Trump v. Barbara, concerning the meaning of the Citizenship Clause in the Fourteenth Amendment.  As I discussed here when the Court granted cert, there is a significant collateral issue at stake besides whether a birth certificate reflects citizenship.  That issue relates to whether a person may lawfully receive or possess firearms.

The Gun Control Act (GCA) makes it unlawful for “an alien” who “is illegally or unlawfully in the United States” or who (with certain exceptions) “has been admitted to the United States under a nonimmigrant visa” to receive or possess a firearm.  18 U.S.C. § 922(g)(5).  As elsewhere provided, “The term ‘alien’ means any person not a citizen or national of the United States.”  8 U.S.C. § 1101(a)(3).  The Fourteenth Amendment defines “citizens” as “persons born or naturalized in the United States, and subject to the jurisdiction thereof.”  Is a person born here of illegal aliens or of temporary visitors on a nonimmigrant visa a non-citizen who does not have Second Amendment rights?

I filed an amicus curiae brief in the Barbara case on behalf of the Article III Project in support of the petitioners and reversal.  Although none of the briefs of the parties or amici (including mine) discuss the nexus between the Citizenship Clause and the Second Amendment, that issue looms in the background of who are citizens and thus who may lawfully possess firearms.

The federal appellate courts have consistently held that illegal aliens are subject to the federal gun ban because they are not protected by the Second Amendment.  Post-Rahimi, the Seventh Circuit held in U.S. v. Carbajal-Flores (2025): “Even if the plain text of the Second Amendment presumptively protects Carbajal-Flores because he falls within ‘the people,’ a long tradition exists of disarming individuals, like illegal aliens, who have not sworn allegiance to the sovereign.”  As if to confirm his dangerousness, the defendant was apprehended firing shots at passing vehicles during the George Floyd riots.

Similarly, in U.S. v. Jimenez-Shilon (2022), the Eleventh Circuit skipped over the textual issue and found that under the history-tradition test, firearm ownership was limited to citizens.  While decided just before Bruen, the court relied only on what would become Bruen‘s text-history test and did not wander into tiers of scrutiny.

While the cases are rarer, it has also been held that aliens here under a nonimmigrant visa are not protected by the Second Amendment.  Noted U.S. v. Oghenebrume (M.D. La. 2025): “F-1 visas are held by those ‘having a residence in a foreign country which he has no intention of abandoning,’ who enter the United States ‘temporarily and solely for the purpose of’ education. Thus, on its face, the provision restricts aliens who have no intention of becoming a citizen and who have not declared allegiance to the United States.”

Rehaif v. U.S. (2019), the only Supreme Court case involving an illegal alien and firearm possession, concerned the requirement of § 924(a)(2) that “[w]hoever knowingly violates” any of the categories of § 922(g) commits an offense.  The Court held that the prosecution “must show that the defendant knew he possessed a firearm and also that he knew he had the relevant status when he possessed it.”  The defendant was in the U.S. under a nonimmigrant F-1 visa which expired when he failed to continue his status as a student.  According to Justice Alito in dissent, he was a citizen of the United Arab Emirates who regularly trained with firearms and, each day, checked into a hotel demanding a room on the eighth floor facing the airport.

Pursuant to Bruen, the courts cite various historical analogues involving persons deemed by the Founders as untrustworthy and dangerous who could be disarmed.  Perhaps the strongest analogue is the disarming of supporters of the Crown and even persons who refused to take an oath of allegiance during the American Revolution.  Without allegiance, citizenship has no meaning.

None of the precedents on the GCA appear to concern whether persons born here of illegal aliens or temporary visitors are “citizens” as defined by the Fourteenth Amendment.  The Amendment’s framers inserted the “subject to the jurisdiction thereof” clause to ensure that persons born here have allegiance to the United States.  It so happens, as I show in my book Securing Civil Rights: Freedmen, the Fourteenth Amendment, and the Right to Bear Arms, these same framers were strong supporters of Second Amendment rights.

Start with the Civil Rights Act of 1866, which defined a citizen as one born in the U.S. who is “not subject to any foreign power.”  Senator Lyman Trumbull, who introduced the bill, desired “to make citizens of everybody born in the United States who owe allegiance to the United States,” which excluded “persons temporarily resident in it whom we would have no right to make citizens….”  On protection of civil rights for African Americans who would be defined as citizens, Trumbull cited the black codes that “prohibit[ed] any negro or mulatto from having fire-arms,” emphasizing “the intention of this bill to secure those rights.”

Expanding on language in the Civil Rights Act, the Freedmen’s Bureau Act of 1866 recognized that the right “to have full and equal benefit of all laws and proceedings concerning personal liberty, personal security, and [estate], including the constitutional right to bear arms, shall be secured to and enjoyed by all the citizens … without respect to race or color or previous condition of slavery.”  (Emphasis added.)  The arms reference was originally moved to be inserted by Rep. Nathaniel P. Banks, who figured in a later debate related to citizenship (see below).

The purpose of the Fourteenth Amendment was to constitutionalize the 1866 Civil Rights Act, which some courts declared invalid as beyond the power of Congress (including on the issue of Second Amendment rights for freedmen).  The main goal of the citizenship clauses of both the Act and the Amendment was to overturn Dred Scott and ensure that African Americans were considered citizens.  It would have been incongruous indeed had the Amendment’s clause “subject to the jurisdiction thereof” repudiated the Act’s clause “not subject to any foreign power.”  Indeed, the 1866 Act remained on the books until 1940 without any challenge that it conflicted with the Amendment.

Senator Jacob Howard, who introduced the Citizenship Clause of the Fourteenth Amendment, explained that three classes of persons were excluded from citizenship – “persons born in the United States who are foreigners, aliens, [and those] who belong to the families of ambassadors or foreign ministers….”  The clause required “a full and complete jurisdiction.” Senator Trumbull said that the clause meant “subject to the complete jurisdiction thereof,” i.e., “[n]ot owing allegiance to anybody else.”  In short, “fully and completely subject to the jurisdiction of the United States,” as Senator George Williams put it.  That excludes citizens of other countries who come here illegally or are temporary visitors because they have no allegiance to the United States.

Given their allegiance to their tribes, the Civil Rights Act had also “exclud[ed] Indians not taxed” from the definition of citizen.  It was unnecessary to include that phrase in the Fourteenth Amendment, explained Senator George H. Williams, because such Indians were excluded from the Amendment’s broader term “subject to the jurisdiction thereof.”  However, the 1924 Indian Citizenship Act declared “all non citizen Indians born within the territorial limits of the United States” to be citizens.  They demonstrated their loyalty to the U.S. by serving in the armed forces in World War I.  Simply residing on the land and being subject to some of the laws was insufficient to establish citizenship.

Advocates who would essentially delete the “subject to the jurisdiction thereof” clause contend that the clause applies only to children born of ambassadors and those born of members of invading armies.  But the law of nations already exempted such persons from citizenship.  As Emer de Vattel wrote in The Law of Nations, “children born out of the country in the armies of the state, or in the house of its minister at a foreign court, are reputed born in the country; for a citizen, who is absent with his family on the service of the state, but still dependent on it, and subject to its jurisdiction, cannot be considered as having quitted its territory.”

The debates on the Citizenship Clause have been analyzed extensively elsewhere, but little or no reference has been made to the Expatriation Act of 1868, which was passed the day before the Fourteenth Amendment was declared as ratified.  The Act provided that “the right of expatriation is a natural and inherent right of all people,” and denied that naturalized citizens “are subjects of foreign states, owing allegiance to the governments thereof….”  It further provided that all naturalized citizens, when in foreign states, were entitled to “the same protection of persons and property that is accorded to native-born citizens….”

The 1868 Report of the House Committee on Foreign Affairs averred that “the American Constitution is itself proof that Blackstone’s theory of allegiance was not accepted by the American governments.”  Under feudalism, “[a]llegiance was due to the Crown and controlled by the place of birth….”  By contrast, “the express or implied consent of both parties is necessary to the extinction of mutual obligations between a Government and its subject.”

The English doctrine of allegiance of jus soli (right of the soil) was based on pure birth-right citizenship under which perpetual allegiance was owed to the sovereign of the soil where one is born, from which one may never extricate himself.  As Rep. Godlove Stein Orth explained, the English common-law rule of citizenship was abrogated by the Declaration of Independence, the Naturalization Clause, and America’s consistent policy.

Rep. Nathaniel P. Banks, chairman of the Committee on Foreign Affairs who reported the bill, compared the inherent right of emigration to “the right to bear arms, the freedom of speech, the liberty of the press, [and] the right of petition,” about which “the Government shall pass no act abridging or denying the existence of such rights.”  But emigration was a two-way street, requiring both the consent of the country and the wish of the emigrant.

The Burlingame-Seward Treaty, signed on the same day that the Fourteenth Amendment was certified as ratified, has also been ignored in the debate over the Citizenship Clause.  The United States and the Emperor of China recognized “the inherent and inalienable right of man to change his home and allegiance,” but provided that “nothing herein contained shall be held to confer naturalization upon citizens of the United States in China, nor upon the subjects of China in the United States.”  That being the case, surely it was not understood that a person born of Chinese subjects in the United States, without more, had birth-right citizenship under American law.

When it decides Trump v. Barbara, the Supreme Court will decide what to do about its precedents like Wong Kim Ark (1898), which held that the son of Chinese parents lawfully and permanently domiciled in the U.S. was a citizen.  If the Court recognizes pure birth-right citizenship without giving much meaning to the definition’s “subject to the jurisdiction thereof” clause, then children born in the U.S. of parents here unlawfully or temporarily—who have no allegiance to the U.S.—will be citizens.  Why would it be assumed that such children would have allegiance to the United States?

Absent an unlikely circuit conflict, it seems doubtful that the Supreme Court will ever grant cert in a challenge to the federal ban on possession of a firearm by illegal aliens.  If it does grant cert, its Rahimi decision all but guarantees that the Court would uphold the ban.  But how it resolves Trump v. Barbara, by either expanding or restricting who are “citizens,” the Court will also decide the coverage of the ban on firearm possession by persons born of those “illegally or unlawfully in the United States.”