Illegal Immigrants and the Bill of Rights

-Submitted by David Drumm (Nal), Guest Blogger

Do illegal immigrants have a Second Amendment right to own guns? In the case of United States v. Portillo-Munoz, the U.S. Court of Appeals for the Fifth Circuit held that illegal immigrants are not part of the “people” protected by the Second Amendment and have no constitutional right to bear arms.

Defendant-appellant Armando Portillo-Munoz was arrested by a Dimmit, Texas police officer who found a .22 caliber handgun in the center console of a four-wheeler driven by Portillo. Portillo indicated to officers that the handgun was used to shoot coyotes at a ranch he worked at. Portillo admitted to being a native and citizen of Mexico and illegally present in the United States.

Portillo’s attorneys filed a motion to dismiss, alleging that conviction under under 18 U.S.C. § 922(g)(5), which makes it unlawful for an illegal alien to possess a firearm or ammunition, would violate the Second Amendment. The district court denied the motion to dismiss and Portillo entered a conditional guilty plea. The Fifth Circuit affirmed the district court’s denial of the motion to dismiss.

In its decision, the Fifth Circuit Court noted that in District of Columbia v. Heller, the individual was a United States citizen, so the question of whether an alien, legal or illegal, has a right to bear arms has not been addressed.

The Fifth Circuit Court then references the case of United States v. Verdugo-Urquidez, where the Supreme Court held that its analysis of the Constitution “suggests that ‘the people’ protected by the Fourth Amendment, and by the First and Second Amendments, … refers to a class of 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.”

Portillo argued that he had sufficient connections to the United States to be considered part of “the people.” The FIfth Circuit Court disagreed, holding that the term “the people”, as far as the Second Amendment is concerned,” does not include illegal immigrants.

In the dissent, Judge Dennis writes:

The sole basis for the majority’s conclusion that Portillo-Munoz should not be considered part of “the people” is that he is unlawfully present in the United States. However, this rationale is wholly unsupported by the applicable precedents.

The Constitution is quite deliberate with its usage of the terms, “person”, “persons”, and “people”. The “people” have the right to peaceably assemble and petition the government, the “people” have the right to keep and bear arms, and the “people” have the right against unreasonable searches and seizures. However, since the Due Process Clause, which incorporated the Second Amendment, covers any “person”, including illegal immigrants, doesn’t this trump the “people?”

H/T: Gerard N. Magliocca, Eugene Volokh.

45 thoughts on “Illegal Immigrants and the Bill of Rights”

  1. well to be part of the armed force usmc, national guard , army.
    go straight to the officer and ask is few forms to fill to enlist and people have get kill and still on service been illegal mexicans , take you glasses this is not Europe they even help on independence and civil war ww1 ww2 korea nam etc , etc for both sides .
    an a illegal alien register to be a owner of a fire arm = money , records , more, taxes less illegal firearm s … it’s fellows here from other countries the will dei forthis country …
    god bless USA I support our troops.

  2. I’m an illegal alien and proud of saying it because I have done so much for myself in this country than a lot of u LEGAL CITIZENS ever will.

    This is a subject that really gets to me. Why do we have the right to own a car, a house and even go to college BUT WE DON’T HAVE THE RIGHT TO DEFEND what we have worked so hard for? See, NOT ALL OF US ARE LOW-LIFE’S. A lot us of came here and worked WAAAAYYYYY much harder to get what we have now THAN ANY OF YALL EVER WILL!!! So, if someone breaks into my home I have to let them take my shit and not do anything about it? To make it even worse, a lot of those burglars ARE LEGAL CITIZENS WHO LIVE OFF WELFARE AND FOOD STAMPS!!! Things that are paid with OUR TAXES! YES, I said ‘OUR TAXES’ because I also own a home, a business and a couple of vehicles on which I PAY SHIT LOADS OF TAXES FOR EVERY YEAR!!! So, what’s the deal America?? I want to know NOW!!!!

    1. If you are actually an illegal alien, then you have STOLEN something that is NOT rightfully yours, the RIGHT to LIVE AND WORK in the USA. Just stealing something and then making more money from it does NOT give you any rights. In fact, if you came here as a doctor from another country illegally, and started practicing medicine without a license from the state, that does NOT mean you have a right to profit from that illegal activity. In FACT such work as it is for ALL illegals is a crime. Just because you are a successful crook does NOT make one an honest person or have the rights of citizens. Think you should also have the right to vote as well without being a citizen? Also, I hope that you registered for the draft with Selective Service when you turned 18 or if you were under age 25 when you got here. If not, you have commtted a felony and should be deported ASAP on that basis alone.

  3. I’m a retired clinical psychologist and now conflict expert…I enjoy very much getting involved in other people’s conflicts and give tools and ideas to solve them.
    Conflicts are great to foster our self-growth!
    so, if you haven’t thought about it before, I’m inviting you to go out and get yourself
    a good enemy. Then, you can get to know yourself, what are your goals in life, your values
    and how to manage real anger in a productive way.
    What else can you wish for? Appreciate your enemy today,
    for teaching you so many things…. And, if you manage to solve the dispute and reconcile,
    its time to find another enemy!


    “Georgia court suspends anti-immigration law

    ATLANTA, Georgia — A federal judge has blocked an immigration bill in the southern US state of Georgia which would have allowed law enforcement officials to verify the migratory status of suspects stopped even for a minor traffic offense.

    US District Judge Thomas Thrash’s 45-page ruling Monday determined that the controversial measure was too draconian and could not be not be applied “equitably” throughout the state — even it managed to “prevent some unauthorized aliens from obtaining state benefits.”

    The law, adopted by the Georgia state legislature in April, would have gone into effect on July 1. It was challenged by Latino groups in the state.

    Thrash’s decision also suspended a provision in the bill that would have punished people who knowingly transport or harbor illegal immigrants.”

    I suspect the second issue which has resulted in large losses in the ag industry is at the heart of the matter but I’m a pessimist.

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