The 14th Amendment’s citizenship clause is not trapped in amber: a reflection on oral argument

While I have written multiple posts for SCOTUSblog on birthright citizenship, a substantial part of my practice is litigating Second Amendment claims. In light of that experience, I was struck when listening to the Trump v. Barbara argument that the challengers’ counsel Cecillia Wang repeatedly insisted that the exceptions to birthright citizenship (such as for the children of ambassadors, tribal Indians, and invading armies) are “a closed set” – i.e., that the exceptions were set in 1868 with the adoption of the 14th Amendment and will always remain the same regardless of changed circumstances. This is a misunderstanding of originalism. As the court has explained in the Second Amendment context, the Constitution does not create “a law trapped in amber.” Rather, courts apply the original meaning of the Second Amendment to today’s circumstances, which can result in outcomes that are different from those at the Founding. A similar approach to the citizenship clause should be adopted in Trump v. Barbara.

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The operative clause of the Second Amendment provides, “the right of the people to keep and bear Arms, shall not be infringed.” Starting in the 2008 case of District of Columbia v. Heller, the Supreme Court has taken a distinctly originalist approach to interpreting this text. As clarified in 2022’s New York State Rifle & Pistol Association v. Bruen, courts analyzing Second Amendment claims must proceed in two stages. At the first stage, a court is to ask whether the plaintiff’s conduct is covered by the plain text of the Second Amendment. If it is, the analysis proceeds to the second stage. There, the government has the burden to show that the challenged regulation is consistent with the nation’s history of firearm regulation. At both stages, the unchanging meaning of the Second Amendment must be applied to modern circumstances.

A couple of examples will help to illustrate this.

Start with the first stage of the analysis – whether the conduct in question is covered by the plain text of the Second Amendment. Let’s say that conduct is the possession of a modern semiautomatic handgun. Semiautomatic firearms did not exist at the Founding. Does that mean they are not covered by the Second Amendment? No. Indeed, in Heller the court rejected as “bordering on the frivolous” the argument that “only those arms in existence in the 18th century are protected by the Second Amendment.” Instead, courts are to apply the modern definition of “Arms” (essentially, weapons) to today’s circumstances to determine whether a given instrument is covered by the Second Amendment’s plain text. So, semiautomatic handguns qualify.

Things are much the same at the second stage of the analysis. There, the question is whether the government can demonstrate that the challenged regulation is consistent with the nation’s history of firearm regulation. And in conducting this analysis, courts are to identify the principles reflected in historical regulations and apply them to today’s circumstances. Take another example from the “Arms” context. While essentially all weapons that can be carried are covered by a plain text definition of “Arms,” the court explained in Heller that it does not follow that Americans have an unlimited “right to keep and carry any weapon whatsoever.” Rather, relying on historical practice, the court has reasoned that the government can restrict the possession of “dangerous and unusual weapons.” Weapons in common use, on the other hand, cannot be banned.

The court applied this principle in Bruen when deciding that Americans have a right to carry handguns in public. In defending its restrictive carry law, New York relied on colonial laws restricting the carrying of dangerous and unusual weapons. The court rejected the significance of these laws even if they did have the effect of banning handgun carry at the time: “even if these colonial laws prohibited the carrying of handguns because they were considered ‘dangerous and unusual weapons’ in the 1690s,” the court reasoned, “they provide no justification for laws restricting the public carry of weapons that are unquestionably in common use today.” Thus, the court took the principle reflected in historical law, applied that principle to today, and found conduct protected that arguably was not protected in earlier times.

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Against this Second Amendment backdrop, it was striking to hear Ms. Wang insist that the exceptions to automatic birthright citizenship under the citizenship clause were frozen in time in 1868. Ms. Wang used the catchphrase “closed set” to describe those exceptions repeatedly throughout her argument. And she did so despite skeptical questioning from several justices. Justice Amy Coney Barrett, for example, asked, “But why is it closed? … The language doesn’t say it’s closed.” And Justice Brett Kavanaugh expressly invoked the court’s understanding of the Second Amendment when pressing her on this point.           

Indeed, given the court’s approach to the Second Amendment, which reflects standard originalist principles, it would be surprising if the court were to hold that the citizenship clause’s exceptions are “frozen forever,” as Ms. Wang insisted.

The citizenship clause provides, in relevant part, that “all persons born … in the United States, and subject to the jurisdiction thereof, are citizens of the United States.” Consistent with its approach in the Second Amendment context, the court’s task should to be determine what “subject to the jurisdiction” meant in 1868, which must explain the exceptions that were understood to exist in 1868, and then apply that meaning to assess the exclusions before the court in Barbara, i.e., the children of foreigners lawfully but temporarily visiting the country and the children of those unlawfully present in the country.

Questions at argument provide examples of how this could affect the analysis. For instance, both the challengers and the government agree that tribal Indians were not automatic birthright citizens when the citizenship clause was adopted (although they disagree on the scope and basis for that exception). Barrett asked, “what if our relationship with tribal Indians has changed so much that we would say, no, Indians really are fully subject to the jurisdiction of the United States in the way any other … natural-born citizen is?” Ms. Wang, however, argued that the citizenship clause continued to exclude them.

If Ms. Wang were right, it could have startling consequences. The challengers insist that tribal Indians were excluded from the citizenship clause because Indian reservations are treated effectively as foreign soil even though in America. Under that reasoning, it would follow that non–Indians born on tribal land also are not automatic birthright citizens, since the key is the land, not tribal allegiance. Thus, under the Supreme Court’s decision in McGirt v. Oklahoma, no one born today in “a huge swathe of Oklahoma,” including “most of the city of Tulsa,” would be an automatic birthright citizen because that land “actually” is “a Creek Indian reservation.” (These quotes are from the chief justice’s dissent in McGirt, but they describe the effect of the court’s ruling.) That result could be avoided if the exclusions are not a closed set and if our relationship with Native Americans tribes has changed such that those on tribal land today are subject to the jurisdiction of the United States. Answering that question would require a firm understanding of why the citizenship clause excluded tribal Indians when adopted and applying that understanding to today’s circumstances. (That result also could be avoided if the government is correct that tribal allegiance, and not birth on tribal land, explains the exclusion, because the allegiance of non-tribal Americans born on tribal land would be to the United States.)

Even more significant is the effect on the analysis of the children of those unlawfully present in the country. Kavanaugh asked whether the court could “reason by analogy to the exceptions that existed based on things that were unforeseen at the time,” and “in particular about the non-citizens unlawfully in the country.” In response, Ms. Wang returned to the refrain that the citizenship clause has “a set of closed exceptions.” Under the approach the Supreme Court has taken in the Second Amendment, and originalism in general, however, the answer to Kavanaugh’s question is clearly yes – it is possible that, reasoning by analogy, there could be additional exceptions based on modern circumstances, and it is possible that the children of those unlawfully in the country would be among them. The question would then become whether the children of modern-day unlawfully present persons are analogous to children who were understood to be excluded from automatic birthright citizenship in 1868. The government would say yes – they are analogous to the children of temporary foreign visitors; indeed, if anything, they have even less of a claim to citizenship than such children.

The challengers dispute that such an exception existed. But under the approach reflected in the court’s Second Amendment cases, the court must decide whether there was an exception for the children of temporary visitors, what the basis for that exception was, and whether that basis extends to the children of those unlawfully present. It cannot simply say that the exceptions are a “closed set” and call it a day. That is bad originalism, and flies in the face of the court’s jurisprudence.

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During the Trump v. Barbara argument, Roberts responded to an argument of Solicitor General D. John Sauer by stating, “Well, it’s a new world. It’s the same Constitution.” And that of course is true. But as the chief’s opinion in Rahimi makes clear, the Constitution does not trap the law in amber. Rather, the enduring principles embodied in the written text must be applied to today’s circumstances. In refusing to do so, the challengers distort the meaning of the citizenship clause and to whom it properly applies.

Disclosure: Pete Patterson represents the Senator Eric Schmitt and Representative Chip Roy in an amicus brief filed in support of Petitioners in Trump v. Barbara.