-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.
Capt. Erb:
I think you meant 1903 instead of 1913. That is when the Dick Act of 1903 was passed. That Act repealed the Militia Law of 1792, and first wrote the term “National Guard” into law.
Arising out of the Dick Act is the modern 10 US Code §311, which defines the unorganized militia of the U.S. as all males 18-45 and certain women. It further defines the organized militia as the National Guard. There are also various State statutes (Arizona’s defines the state militia to include women as well as men).
However, we are left with that pesky second part of the Second Amendment which states: “…the right of the People to keep and bear arms shall not be infringed.”
I believe some of the attorneys here, especially Dredd, have addressed the meaning of “People” upthread.
Judge GARWOOD wrote the opinion for the panel, Judge GARZA agreed, with Jude DENNIS dissenting, as was noted.
I expect an en banc rehearing motion on this one, then a petition to the Supremes.
The foundation for the two-judge majority opinion is “aliens who enter or remain in this country illegally and without authorization are not Americans as that word is commonly understood” (page 4, Professor Turley’s link to the opinion).
The foundation for the one-judge dissent is “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.” (Prof. Turley’s quote above, upthread).
The determination of who best understands constitutional law in these premises, the dissent or the majority, turns on whether or not the majority “rationale is wholly unsupported by the applicable precedents”.
A motion for a re-hearing en banc will need to show that this two-judge majority is not in accord with 5th Circuit or Supreme Court precedent in order to be granted, as will any subsequent petition to the Supremes. A 5th Circuit panel is not permitted to rule contrary to a prior panel, nor contrary to a prior en banc decision.
The dissent agreed with the majority on the Fifth Amendment issue, then sorta split the remaining issues: “Of course, whether 18 U.S.C. § 922(g)(5) violates the Second Amendment is a separate question from whether Portillo-Munoz is part of “the people” who have First, Second, and Fourth Amendment rights. I would remand for the district court to consider in the first instance the applicable level of scrutiny under the Second Amendment, and whether the provision passes muster under that level of scrutiny.”
For the dissent, the case was not ripe in the sense that the lower court had not considered an issue upon which any well reasoned opinion must rest. That issue the dissent focused on is one of mixed fact and law, thus, the dissent urged that it would be better to remand for some factual determinations, then deal with the then ripe issue with a more matured decision based upon substantial findings of fact.
The dissent went further to quote from an earlier 5th Circuit opinion of Judge Garwood who had also written for the majority then: “There is no evidence in the text of the Second Amendment, or any other part of the Constitution, that the words “the people” have a different connotation within the Second Amendment than when employed elsewhere in the Constitution. In fact, the text of the Constitution, as a whole, strongly suggests that the words ‘the people’ have precisely the same meaning within the Second Amendment as without.” See United States v. Emerson, 270 F.3d 203, 227-28 (5th Cir. 2001).
The dissent links the issue to Supreme Court precedent by citing “Plyler v. Doe, 457 U.S. 202 (1982): ‘Whatever his status under the immigration laws, an alien is surely a ‘person’ in any ordinary sense of that term. Aliens, even aliens whose presence in this country is unlawful, have long been recognized as ‘persons’ guaranteed due process of law by the Fifth and Fourteenth Amendments.’ Id. at 210 (citing cases).”
Thus, the dissent saw the majority opinion as a departure from both prior panel decisions and Supreme Court precedent.
If you wish to join and are not here legally, the military can petition for your green card, and then you can enlist.
The Denver Post article reported:
“[T]he citizenship of 16,031 members of the Army, Air Force, Navy and Marines is listed as ‘unknown.’ That’s about one in 100 active-duty military members who might be U.S. citizens, legal immigrants – or just about anybody else.”
http://www.military.com/NewContent/0,13190,Defensewatch_030104_Illegals,00.html
The militia was all CITIZENS who should have their firearms ready at all times to deal with threats
Thank you for agreeing with me. The right of the people to keep and bear arms DOES require that one be here legally, unless you think that illegals should also have the right to vote in our elections too. In this context of the people, it is conditional on being eligible to be part of the militia. Unless of course, you take the view that the people means crooks, murderers, and all other felons as well. If you think illegals should have the right to have arms, then there is no reason to deny any person that right.
The National Guard supplanted the state militias in 1913. Yes women could and did have arms for obvious reasons, as well as serving as auxiliaries in the militia, and in many cases as combatants when the supply of available men ran low. Also you cannot be an illegal and be in the US armed forces by the way. If you wish to join and are not here legally, the military can petition for your green card, and then you can enlist.
The phrase “well-regulated militia” comes out of the 17th-18th century debate in England/Great Britain on whether the defense of the nation against invasion and insurrection required a standing army, or whether it was best served by a militia. That’s why the army (the “guards and garrisons”) wound up being funded annually rather than longer-term (and also why the navy, which everyone conceded was vital to the protection of an island nation was “Royal” while the army was always the nation’s rather than the monarch’s). (If you do a Google Book search for the phrase and limit it to things published before 1750 you can find some fascinating pieces.)
That seemed to carry over to the British North American colonies so when the debate began again in the early US, it was pretty easy to go for militia protection with minuscule standing forces.
Of course, that’s a historical, almost etymological explanation for “well-regulated”. What it means in the law ain’t my field.
There was eventually a distinction, at least in the US, between organized and unorganized militia: the former was those belonging to the (more or less) organized, equipped, and uniformed units which either acted for local protection or aided the regular forces during a war; the latter was basically the nation in arms: all adult (white) men, who could theoretically be called upon by competent authority for an emergency.
The organized militia eventually became the National Guard, while the unorganized militia became pretty much extinct, although I believe the concept has been used by various states for “State Guard” type forces.
My favorite tinfoilery involves state attorneys general “well-regulating” the unorganized militia by setting standards for weapons, participation in supervised musters and like that. Of course, that’s pretty much on a par with the “Ohio isn’t really a state” argument of income tax denialists, but what the hey.
Where is the NRA stand on this. I would think that with their many assertions of the right to bears arms, in bars and church for instance, logically it should extend to illegal aliens. Somehow though, in their minds I bet it doesn’t. We all know how dangerous those houses of worship may be, I’m sure glad I have my Glock when I go to Yom Kippur Services. You never know…………..
Bdaman, your point is well taken that immigration laws and administrative rulings have absurd clauses.
AY, in reading the news, I think some folks already have that task in hand. It almost sounds like a sick joke, but in reality it is just sick.
How in the world do you declare a person to not be a person?
The answer is contained in Federalist Paper No. 54.
Slaves were considered both persons and property.
OS,
Careful, there might be someone that might want you to orchestrate a kill…
O.S. I’m sorry, I respect and appreciate your comments but IMO if you are not here legally you are not afforded the same rights as others that are here legally. It pisses me off that a double standard applies. You can cross the Mexican Border illegally but if you are Cuban,Haitian,Bahamian or other trying to make it here by sea you have to have dry feet even though you were captured in state waters. What about those people?
Bdaman sez: “But they are not. The first law is whether or not they are here legally.”
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Let’s take this to the ultimate (and admittedly absurd) end point. Since it is not illegal to kill an animal because animals are not people, and an illegal alien is not a person, then it should not be against the law to hunt down and kill illegal aliens as sport.
If a human being in this country is subject to all other laws, why not this right?
”Our officers are already under orders not to make arrests”
Had this person gone through the normal procedures of entering this country this would not have been an issue.
If a human being in this country is subject to all other laws, why not this right?
But they are not. The first law is whether or not they are here legally.
Cross posted from Nathan Deal Thread.
ICE Agent’s Union Speaks Out on Director’s “Discretionary Memo”
“Any American concerned about immigration needs to brace themselves for what’s coming,” said Chris Crane, President of the National ICE Council which represents approximately 7,000 ICE agents, officers and employees, “this is just one of many new ICE policies in queue aimed at stopping the enforcement of U.S. immigration laws in the United States. Unable to pass its immigration agenda through legislation, the Administration is now implementing it through agency policy … ICE worked hand-in-hand with immigrants rights groups, but excluded its own officers.”
Agents say the policy is a “law enforcement nightmare” developed by the Administration to win votes at the expense of sound and responsible law enforcement policy. “The desires of foreign nationals illegally in the United States were the framework from which these policies were developed,” Crane said, “the result is a means for every person here illegally to avoid arrest or detention, as officers we will never know who we can or cannot arrest.”
…”Our officers are already under orders not to make arrests or even talk to foreign nationals in most cases unless another agency has already arrested them; you won’t find that written in any public ICE policy.”
…”I think the writing is on the wall for every person concerned about good government and effective immigration reforms – the things happening at ICE represent neither, said Crane, we are asking everyone to please email or call your Congressman and Senators immediately and ask them to help stop what’s happening at ICE, we desperately need your help.”
http://www.prnewswire.com/news-releases/policy-public-interest-latest-news/ice-agents-union-speaks-out-on-directors-discretionary-memo-124441368.html
Capt. Erb, at the time the Second Amendment was written, a “well regulated militia” meant something quite different than some interpret it to mean these days. It had nothing to do with any National Guard.
Well regulated meant, and still means, “in good working order.” Think the meaning of a common object such as a clock, which should be well regulated in order to tell time. The militia was all citizens who should have their firearms ready at all times to deal with threats. This was put in because there was a memory within their own lifetimes of living under an oppressive monarchy that confiscated weapons that could be considered a threat to the crown. Following the uprising in Scotland in 1745-46, the Act of Proscription was passed and it was even forbidden for a Scottish person to possess a knife with a sharp point. There were people living in America at the time this was written who had been ‘Sentenced to Transportation’ for violations of the Act of Proscription. Most of those former “felons” knew someone who had been hanged or drawn and quartered for having weapons. They did not intend it to happen again.
How many “Illegals” are presently serving in the Armed Forces….This is Bull Shit….Dimmit County has about 10K people….on the border and you’ll love this…
Formation of the 1914 White Man’s Primary Association was designed to exclude Mexican Americans from any meaningful participation in county politics. In the 1944 Smith v. Allwright case, the United States Supreme Court found the White Primary to be unconstitutional…..
Can’t get much better than this…
@ Arthur .. Were woman allowed to join the militia?
My first reaction to this was visceral rather than rational. It caused me to think back to the time a person of color was only a percentage of a person. How in the world do you declare a person to not be a person? If a human being in this country is subject to all other laws, why not this right? Do they lose the right to free speech? Due process? Oh, wait…….never mind.
Judge Dennis is as bad as the NRA in his faliure to read the ENTIRE second Amendment. The first part which is the most important is that it refers to a well regulated militia, which illegals are prohibited from joining.. Even in the old days, an illegal would not be able to join that militia, and today the National Guard fulfills that function., and he still could not join.
Thus citizenship is a necessary qualification for ownership of arms.