5th Cir: Undocument Individuals are Not People for 2nd Am.

The Fifth Circuit held that undocumented individuals are not “people” protected by the Second Amendment of the US Constitution. By a 2:1 vote, the court held that aliens illegally present in the U.S. are not entitled to Second Amendment rights, upholding the constitutionality of a federal statute which criminalizes possession a firearm by an illegal alien. U.S. v. Portillo-Munoz, No. 11-10086, 2011 WL 2306248 (5th Cir. June 13, 2011). An opinion was filed concurring in part and dissenting with the contention that aliens illegally in the U.S. have no Second Amendment protections.

Armando Portillo-Munoz, a citizen of Mexico, was working on a ranch in Texas when he was arrested for carrying a firearm, which he said he was using to kill coyotes. (He was also arrested, but not indicted, for possession of a controlled substance.) He admitted that he was illegally present in the country. After filing an unsuccessful motion to dismiss in the District Court for the Northern District of Texas, he entered a conditional guilty plea for being unlawfully present in the U.S. in possession of a firearm under 18 U.S.C. § 922(g)(5). Then he filed an appeal to the Fifth Circuit, challenging the constitutionally of the federal statute under the Second Amendment.

The Fifth Circuit affirmed the District Court’s denial of Portillo-Munoz’ motion to dismiss. Judge William Garwood, a Reagan appointee, wrote the opinion of the Court and was joined by Judge Emilio Garza, a George H.W. Bush appointee. The Court began by noting language from District of Columbia v. Heller referring to “law-abiding citizens” and “members of the political community” to indicate that Second Amendment protection does not extend to illegal aliens (554 U.S. 570, 635, 580 (2008)). Then, it considered the definition in United States v. Verdugo-Urquidez, a Fourth Amendment case, of “the people” in the First, Second, and Fourth Amendments as “persons who are part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community” (494 U.S. 259, 265 (1990)). It disagreed with Portillo-Munoz’ contention that he had “sufficient connections” to be considered part of the people, stating that “neither this court nor the Supreme Court has held that the Fourth Amendment extends to a native and citizen of another nation who entered and remained in the United States illegally.”

The Court remarked that even assuming, arguendo, that illegal aliens are protected by the Fourth Amendment, it does not follow that the Second Amendment encompasses the same set of people, reasoning that “Second Amendment grants an affirmative right to keep and bear arms, while the Fourth Amendment is at its core a protective right against abuses by the government.” It also relied on Matthews v. Diaz, 426 U.S. 67 (1976), in making the proposition that Congress can make laws for aliens that would be unconstitutional for citizens and cited other Supreme Court cases that “emphasized that the rights thus protected were those of aliens who were lawful inhabitants” (emphasis in original).

Judge James Dennis, a Clinton appointee, dissented with the court’s finding that aliens illegally present in the U.S. are not entitled to Second Amendment protections, saying that he would have remanded to the district court to decide, given that Portillo-Munoz does deserve these protections, whether § 922(g)(5) is constitutional. His opinion rejected the distinction between the Second and Fourth Amendments, relying on Heller’s reference of “the people” as a “term of art” (554 U.S. at 580), which quotes Verdugo-Urquidez (494 U.S. at 265); and citing Judge Garwood’s opinion in United States v. Emerson, which noted that “the people” means the same thing in the Second Amendment as elsewhere in the Constitution (270 F.3d 203, 227-28 (5th Cir.2001)). Thus, the dissent reasoned that accepting the majority’s reasoning would imply that illegal aliens lack not only Second Amendment, but also Fourth Amendment protections. Dennis also noted inconsistency with Plyler v. Doe, which grants illegal aliens Fifth and Fourteenth Amendment protections (457 U.S. 202, 210 (1982)).

The dissent affirmatively considered Portillo-Munoz protected, that he had “substantial connections” with the U.S., following Verdugo-Urquidez: “she or he (1) is voluntarily present in the United States and (2) ‘accept[s] some societal obligations’” (internal quotes from 494 U.S. at 273; brackets in original), and the Fifth Circuit’s application of that case in Martinez-Aguero v. Gonzalez, 459 F.3d 618, 625 (2006). Dennis found that Portillo-Munoz “came to and remained in the United States of his own volition” and that he “has accepted and fulfilled obligations to his American employers.” Lastly, the dissent remarked that the other cases that the majority cited were “inapposite” to the question of whether Portillo-Munoz belongs to “the people” and could only be relevant to the question of whether § 922(g)(5) in particular is constitutional.

Judge Dennis concurred with the majority on Portillo-Munoz’ Fifth Amendment due process claim, which was found to have been waived, since the defendant’s conditional plea invoked only the Second Amendment.

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