"The People" of Heller and Their Politics: Whether Illegal Aliens Should Have the Right to Bear Arms after United States V. Portillo-Munoz

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I. INTRODUCTION

In 2008, the U.S. Supreme Court decided in District of Columbia v. Heller that the Second Amendment endows individuals, regardless of whether they are part of a militia, with the right to bear arms. (1) Although illegal aliens are theoretically precluded from possessing firearms under 18 U.S.C. [section] 922(g)(5), (2) Heller, on its face, seemed to question the validity of this law as an outdated abridgement of an individual's right to own a gun. As a result, illegal aliens attempted to assert their Second Amendment right in federal courts by challenging their convictions under [section] 922(g)(5) as unlawful after Heller. (3)

However, there is one important caveat: Heller's somewhat amorphous definition of "the people" of the Second Amendment. The Court defined "the people" as "all members of the political community" who are "law-abiding, responsible citizens." 4 The terms "political," "law-abiding," and "citizens" seem to exclude deliberately those who broke the law or those who are non-American citizens (or both, when it comes to illegal aliens, because they illegally enter the United States). Indeed, that is exactly how federal courts have treated "the people" since Heller, as evidenced by these courts' hesitation to extend the protections afforded by the Second Amendment to illegal aliens. (5) While Heller seemed to expand the right of individuals to bear arms, it actually constrained the Second Amendment with respect to noncitizens.

The first federal court of appeals addressed this issue in the summer of 201 1 and followed in the footsteps of the district courts. (6) In United States v. Portillo-Munoz, a divided Fifth Circuit panel held that the Second Amendment does not extend to aliens illegally present in the United States and, therefore, that it does not guarantee them any individual right to possess firearms. (7)

Portillo-Munoz may have serious constitutional consequences for illegal aliens. (8) Because the phrase "the people" is mentioned throughout the Bill of Rights, particularly in the First, Second, Fourth, and Ninth Amendments, (9) Portillo-Munoz's holding that illegal aliens are not included in "the people" of the Second Amendment may signify that they are also excluded from other Bill of Rights guarantees. This is especially true since Heller extended its definition of "the people" to all other provisions of the Constitution that mention this phrase. (10)

This could mean that millions of United States residents are "nonpersons who have no rights to be free from unjustified searches of their homes and bodies and other abuses, nor to peaceably assemble or petition the government." (11) Whether illegal aliens belong to "the people" of the Second Amendment is critical to determine after Portillo-Munoz not only in the context of the right to bear arms, but also in the context of other constitutionally protected rights.

This Comment argues that illegal aliens are not members of "the people" of the Second Amendment and thus, they lack the constitutional right to bear arms. In the alternative, even if illegal aliens are part of "the people," the government can discriminate against them--by restricting their right to bear arms--on the ground that illegal aliens are not a suspect class under the Equal Protection Clause.

The decision of the Portillo-Munoz court to exclude illegal aliens from "the people" of the Second Amendment is therefore correct. Heller has reformulated "the people" from those individuals who are part of a "national community" to those who are part of a "political" one. (12) Portillo-Munoz's refusal to extend Heller's definition of "the people" to other constitutional amendments, however, is misplaced. Heller explicitly extended its reading of "the people" to the other amendments, thereby excluding illegal aliens from membership in "the people" across the Bill of Rights. (13) This restriction highlights the limitation on illegal aliens' constitutional rights even before Portillo-Munoz. …