-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.
since most of the worker class from latin america are not so much spanish as they are american indian (aztec, toltec, mayan etc.) how does that make them different from the american indians we have here. more so when our borders separate their ancestral lands. apache and possably navajoes in the south, lakota in the north. would someone who happened to be visiting relatives in the gadsden purchase suddenly become a citizen because they were on the north side of a line on a given date?
The various Latino cultures are older and every bit as rich as those of Western Europe and yet again we see them asa as a threat.
NO actually I and most people who are opposed to illegals do NOT see Latinos as a threat. All the more so since I live on the border and I do so because I enjoy Mexican culture. If I wanted to live where everybody looked like me and talked like me, I would move to Minnesota or Maine. In fact, I would be damned pissed off if millions of those folks up there came down here.
I saw a Ted Kennedy speech on C-span in which he gave the following numbers regarding illegals. Around the time of the Reagan amnesty, there were about 40,000 illegal entering the US per year. NOW it is about 500,000/yr. If you were worried about 40,000/yr, you had problems other than illegals. But a twelve fold increase IS a major cause of concern. When you add over one million legal immigrants/yr to that, it is an unsustainable number of immigrants. All the more so with the current recession.
Using the weather analogy, folks would think you were crazy if you left Houston because of a rain shower with 10kts winds. But if you stayed when a hurricane with 120 kts winds came, and said it is nothing but wind and rain, so what? Then you would be crazy. The scale is what matters here. If there were Russians coming over at the same rate as Latinos, I would be just as opposed to it. In fact, the Russians used own part of the US too, and a lot more than we bought from Mexico.
not just the one case you use to prove all cases for all time.
I did not use that case, YOU did and lied about Jose being an illegal alien, and then sought to say he was an illegal, LEGALLY bearing arms.
In the instant 5th Circuit case the immigration crime at issue was a misdemeanor
I did NOT see that was established at all since all that I saw was that he was here illegally. He could have and more than likely had been caught before, thus making his presence here a felony. That is the beauty of Secure Communities since it only gets those who are felons since they MUST have been caught before in order to get their fingerprints. Unless you think that they can get them as they run across the border.
“the people means crooks, murderers, and all other felons” is likewise a stretch and very thin.
I did not think that you would exclude American citizens who have committed felonies from being included in the “people”. THAT is a real stretch. It is an even bigger stretch to include those who have NO right to even BE here as part of “the people”. All the more so since we can and DO deport them OUT of the US and thus are no longer part of the people. We cannot deport our native born American felons as we can naturalized citizens and aliens. So yes felons are still our people for better or worse.
Interestingly, it may well be legal for a legal resident alien in Texas to have firearms since all one needs to buy one is a valid Texas Drivers license, which requires only proof of legal residence. Even though the Federal statute forbids that. That statute also forbids any person who has been dishonorably discharged from the military from possessing firearms. Again, another abridgement of the right to keep and bear arms.
, nor who remove the right to bear arms if one misdemeanor has been committed
I read of a case where a Navy vet who was charged many years ago with misdemeanor assualt in Maryland, was denied the right to buy a firearm. He served out his duty in the Navy, was honorably discharged, yet the misdemeanor of old came up and he was denied.
“The fact is that the illegal has and is committing a crime”
Well Arthur, my background is such that none of my family has been her for more than about 120 years. Two of my wifes Uncles came here as illegals in the 1920’s, led productive lives and raised families. This country has been the reult of recurring waves of immigration throughout history. The Scots were considered primitive, the Irish subhuman, the Poles stupid, the Chinese unequal to whites, the Italians criminal and we all know what was thought of the Jews. Beyond that we had the illegal, from their standpoint,immigration of Black people and the exile of Native Americans. The various Latino cultures are older and every bit as rich as those of Western Europe and yet again we see them asa as a threat.
“to do otherwise is to enforce a state of perpetual punishment on the ex-felon. What is the legal rationale for establishing a second tier of citizenship for ex-felons?”
LK,
I personally have never liked laws that continue to take away a persons rights after they’ve served their time. By doing so we are giving them the message that they can never redeems themselves, thereby reinforcing their criminality since they could easily reason, why bother adhering to the straight and narrow, I’m screwed anyway.
Around the time of my birth my father served time as a felon. The aftereffects, no voting, bo credit, etc.harmed him for the rest of his life, though he was an intelligent capable man who raised his children with good values and was in jail for a non-violent crime.
My suspicion is these types of laws get on the books because it garners politicians votes for “getting tough on crime.” Often code words for racism and xenophobia.
Arthur Randolf Erb,
The 60 minutes report points out many such cases, not just the one case you use to prove all cases for all time.
In the instant 5th Circuit case the immigration crime at issue was a misdemeanor, thus your jump to felons and felonies to support your position on this case is not logical in these premises, and therefore is a logical fallacy.
Likewise your conflating of voting with the second amendment is another crossing without a bridge, because voting is not part of this case either.
Likewise accusing those who argue against your position to be arguing that “the people means crooks, murderers, and all other felons” is likewise a stretch and very thin.
Your final conclusion that “If you think illegals should have the right to have arms, then there is no reason to deny any person that right” hangs on another thin thread, another logical fallacy.
One can argue that states can (some do, some do not) disallow voting to convicted felons without connecting that to those who commit a misdemeanor and cross the border illegally, as in the case under discussion.
Work on your amygdala, the fear generator is getting the better of your logic engine over in your cognitive conscious.
I agree with Judge Dennis that robust factual findings were needed in this case.
Facts concerning what federal government interest is at stake by allowing or disallowing an illegal alien who committed a misdemeanor to carry a firearm to help his boss. Carrying a firearm to protect his boss’s property … compared to an alien who has not committed that misdemeanor … compared to a citizen.
What nexus is there to bearing a weapon for that purpose or not doing so, by defining two of the three as “people” or “persons”, but not the one who committed a misdemeanor? It has no bearing on whether or not someone is a person for the factual purpose at hand, an essence of employment.
Another factual scenario might be whether or not the individual involved in this case could be a bodyguard or not. Facts and circumstance are relevant to legitimate governmental purpose.
Broad brush federal law tends to remove state rights, as in this case.
The states are usually better equipped to deal with the factual scenarios that vary widely within their boundaries.
That is why some felons, under state law, can no longer vote, but others can under another state’s laws.
I don’t know of any states that remove the right to vote when one misdemeanor has been committed, nor who remove the right to bear arms if one misdemeanor has been committed, especially where there is no logical nexus between the misdemeanor and the determination where the one being charged is a person or not.
Dredd, i hardly think that you could find any logical fallacies in my posts since you have such a hard time with the simple truth. Jose was NOT an illegal alien when he enlisted in the USMC. Then you try and argue he was an illegal alien bearing arms legally. THAT is an outright lie and a logical fallacy in itself. Most folks like you also like to say that ALL immigrants are the same and there is no difference between a legal immigrant and an illegal one. So if you are against illegal immigrants, you must be xenophobic and anti-immigrant. THAT is a logical fallacy too.
As for Jose who gave his life, I am sorry that happened, but he at least earned his rights and made up for his past criminal activity. That hardly means that we should turn a blind eye to those who violate the laws and that all illegals are like him. I was astounded at the fact that he got his green card by outright fraud by claiming he was only 16 at the time of his arrest for illegal entry. So I guess you have no problem with having an adult 22 to 25 year old man attending high school posing as a teenager, and living with a family. If he had sexual relations with a girl who is underage while he was actually an adult would that be OK with you too? Is there any law that illegals should be observing, or only the ones that don’t inhibit their advancement?
, it is disingenuous to talk about felons, those who are adjudicated dangerous, etc., in that context. Of course, convicted felons and some others have had certain of their civil rights suspended by statute, such as voting and possessing firearms. The key is, the person is demonstrably a danger to self or others, or suspension of the rights is a part of judicial punishment.
Actually the vast majority of felons are NOT dangerous since most of them were in prison for non-violent crimes such as drugs, fraud, theft, etc.. If one can lose ones rights by statute and judicial sanction, then the Congress can certainly pass laws restricting those rights of firearms possession. Then there is the problem of eternal damnation even after the sentence has been served in regards to weapons. If that is permitted, then it is well within the power of Congress to ban illegals from possession.
The fact is that the illegal has and is committing a crime, and having a weapon in the commission of a crime is also illegal and adds to the severity.. You might have a point for legal aliens who are here since they are not criminals and are definitely part of the people.
It seems that I cannot post any more.
Arthur Randolph Erb: “as a felon leaves prison, we should return his gun that he used to kill somebody. I hardly think that is something any of us wish to see, but some fools may see nothing wrong in that.”
What is the legal reason to not return the benefits and rights of the Constitution to a felon that has served their sentence and ‘paid their debt’. Is to do otherwise is to enforce a state of perpetual punishment on the ex-felon. What is the legal rationale for establishing a second tier of citizenship for ex-felons? So long as by due process can the ongoing liberties of citizenship be withheld? Is a right enumerated in the Constitution or its amendments a “liberty” under the Fifth Amendment?
Is there another society on the planet that thinks this is a wise idea?
felon=murderer
Arthur Randolph Erb,
Otteray Scribe said:
I believe some of the attorneys here, especially Dredd, have addressed the meaning of “People” upthread
To which you replied:
That is only if you choose to disregard the first part of the amendment. If there are no possible bars to being armed as long as you are a person, then as soon as a felon leaves prison, we should return his gun that he used to kill somebody. I hardly think that is something any of us wish to see, but some fools may see nothing wrong in that.
================================
I won’t get into your prolific logical fallacies.
I will just say that one of the first casualties of the Iraq war was an illegal alien according to a 60 minutes report.
And he was bearing arms legally.
Bdaman
” (Prof. Turley’s quote above, upthread).
Please point to professor Turley’s quote”
=================================
Thank you, good eye.
I meant the posters quote, who in this post was not Prof. Turley, but instead was the great Nal.
Cheers.
“Most of the NRA wouldn’t want anyone that is attending a Yom Kippur service to own a gun to begin with.”
Jude,
You may be right, what with ZOG and all. Oopsie…maybe I’m running my mouth off too much….No Glock folks…just a typo for schlock.
On a balmy early Saturday summer evening, the U.S soccer team played for a prestigious championship in a U.S. stadium … and was smothered in boos.
Welcome to another unveiling of that social portrait known as a U.S.-Mexico soccer match, streaked as always in deep colors of red, white, blue, green … and gray.
http://www.latimes.com/sports/la-sp-0626-plaschke-gold-cup-20110626,0,7072114.column
The SCOTUS has addressed the first part of the Second Amendment. It means more than the Nat’l Guard within the meaning of militia according to recent decisions.
Did you know that Congress passed the wording as, “A well regulated Militia…”; however, it was ratified by the States as , “A well regulated militia…” The word was no longer capitalized, making a huge difference in the meaning.
As far as restrictions, it is disingenuous to talk about felons, those who are adjudicated dangerous, etc., in that context. Of course, convicted felons and some others have had certain of their civil rights suspended by statute, such as voting and possessing firearms. The key is, the person is demonstrably a danger to self or others, or suspension of the rights is a part of judicial punishment.
I believe some of the attorneys here, especially Dredd, have addressed the meaning of “People” upthread
That is only if you choose to disregard the first part of the amendment. If there are no possible bars to being armed as long as you are a person, then as soon as a felon leaves prison, we should return his gun that he used to kill somebody. I hardly think that is something any of us wish to see, but some fools may see nothing wrong in that.
@Mike Spindell – I think you are mistaken. Most of the NRA wouldn’t want anyone that is attending a Yom Kippur service to own a gun to begin with.
” (Prof. Turley’s quote above, upthread).
Please point to professor Turley’s quote