SCOTUSblog By Pete Patterson 4/7/2026
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.
More:
https://www.scotusblog.com/2026/04/the-14th-amendments-citizenship-clause-is-not-trapped-in-amber-a-reflection-on-oral-argument/
