Aaron Reichlin-Melnick
‪@reichlinmelnick.bsky.social‬

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In a complex case out of the 3rd Circuit, Judge Matey, a 2019 Trump appointee, argued in dissent (on an issue that was not decided by the majority) that noncitizens are not protected by the First Amendment. Notably, he cites Bruen, indicating the latest move to import "history and tradition" to 1A.
Our Nation’s longstanding practice also yields few
insights, as there is no unbroken chain of understanding or
“regular course of practice” that might “liquidate & settle the
meaning” of the First Amendment’s applicability to aliens.
Letter to S. Roane (Sept. 2, 1819), in 8 The Writings of James
Madison 450 (1908); see also N.Y. State Rifle & Pistol Ass’n,
Inc. v. Bruen, 597 U.S. 1, 35–36 (2022). Nor is there any
evidence of “a governmental practice [that] has been open,
widespread, and unchallenged since the early days of the
Republic,” that might “guide our interpretation.” Nat’l Lab.
Rel. Bd. v. Noel Canning, 573 U.S. 513, 572 (2014) (Scalia, J.,
concurring in the judgment). All to say, there is no long
standing post-enactment practice—custom, we might properly
call it—recognizing all aliens within our borders possess First
Amendment rights.
ALT
July 15, 2025 at 2:58 PM