David Cohen: State Restrictions on Non-Citizens' Gun Rights

by Michael Ramsey

David S. Cohen (Drexel University -- Earle Mack School of Law) has posted McDonald's Paradoxical Legacy: State Restrictions on Non-Citizens' Gun Rights (Maryland Law Review, vol. 71, p. 1219, 2012) on SSRN.  Here is the abstract:

Relying on the Supreme Court's recent decisions in District of Columbia v. Heller and McDonald v. City of Chicago, the United States District Court for the District of Massachusetts recently ruled that the Second Amendment's individual right to possess a gun for self-defense, which the Supreme Court found in Heller and incorporated against the states in McDonald, protected a lawful permanent resident's right to bear arms and that the Massachusetts statutory scheme with respect to non-citizens violated that right. The district court found that the Second Amendment applies to non-citizens because the court read McDonald as incorporating the Second Amendment through the Due Process Clause, which protects against states infringing on the rights of "persons." However, the court erred when it ignored the voting paradox within the McDonald decision. This Essay attempts to resolve McDonald's paradox in the context of non-citizens by applying a modification of the familiar rule for dealing with fragmented Supreme Court opinions. Under that modified rule, there is no basis for finding that the Second Amendment, applied to the states through the Fourteenth Amendment, protects non-citizens from gun restrictions. There may be other reasons to find that states cannot restrict non-citizens from owning or possessing firearms, but based on Supreme Court precedent, incorporation of a fundamental right is not one of them.

In case it isn't clear from the abstract, the problem is that only four Justices in McDonald thought the right to bear arms was incorporated against the states through the Fourteenth Amendment's due process clause; four thought it was not incorporated at all, and Justice Thomas, on originalist grounds, thought it was incorporated through the Fourteenth Amendment's privileges or immunities clause.  But the privileges or immunties clause, unlike the due process clause, applies only to "citizens of the United States" -- hence the difficulty identified in the article.
For originalists who agree with Justice Thomas that the privileges or immunities clause is the best source of incorporation this issue may be a broader problem than just the paradox of McDonald.  Does that position commit one to the proposition that non-citizens have very few rights against the states (e.g., no free speech rights, no right against cruel and unusual punishment)?  And is there Fourteenth-Amendment-era evidence that this is how the Amendment was understood?