In 1989, the Supreme Court found in DeShaney v. Winnebago County Department of Social Services that State officials have no obligation to protect private citizens from violence or injury caused by other private citizens. DeShaney v. Winnebago Cnty. Dept. of Soc. Services, 489 U.S. 189, 194 (1989) (finding county authorities not liable when a child in its custody was seriously injured by his father). Writing for the Court, Chief Justice Rehnquist explained the Due Process Clause limits a state’s power to deprive individuals of “life, liberty, and property without due process,” but does not create an affirmative duty to protect individuals. Id. at 194, (quoting U.S. Const. amend. XIV, § 1). Thus, state actors cannot be held liable for harm caused to private citizens under 42 U.S.C. § 1983. However, in DeShaney, the Court identified two possible exceptions in which a private citizen may be entitled to protection. The first, known as the Special Relationship Exception, is often applied when a state incarcerates, institutionalizes, or restrains a person involuntarily. DeShaney, 489 U.S. at 198-99; see Christopher M. Eisenhauer, Police Action and the State-Created Danger Doctrine: a Proposed Uniform Test, 120 DICK. L. REV. 893 (2016).

In District of Columbia v. Heller, the Supreme Court ruled the Second Amendment confers an individual right to keep and bear arms to law-abiding, responsible citizens and “members of the political community” District of Columbia v. Heller, 128 S. Ct. 2783, 2790 (2008). In McDonald v. City of Chicago, the Court held the individual weapon-owning right to be a fundamental right incorporated against the states by the Fourteenth Amendment’s Due Process Clause. McDonald v. City of Chi., 130 S. Ct. 48 (2009).

More recently, many of the U.S. Circuit Courts of Appeal have examined precisely who can be considered a law-abiding citizen and members of the political community in this context. These cases have examined the constitutionality of 18 U.S.C. § 992(g), a provision of the amended Gun Control Act of 1968 that prohibits the sale or possession of firearms to nine categories of individuals, including undocumented immigrants. Specifically, these cases have questioned whether the Second Amendment and the right to bear arms apply to undocumented immigrants, thereby making § 992(g) unconstitutional.