Academic journal article Harvard Law Review

Constitutional Law - Second Amendment - Fifth Circuit Holds That Undocumented Immigrants Do Not Have Second Amendment Rights

Academic journal article Harvard Law Review

Constitutional Law - Second Amendment - Fifth Circuit Holds That Undocumented Immigrants Do Not Have Second Amendment Rights

Article excerpt


In District of Columbia v. Heller,(1) the Supreme Court held that the Second Amendment protects an individual right to possess firearms for self-defense, unconnected to service in a militia.(2) The Heller Court broadly defined "the people" in the Second Amendment,(3) even suggesting that it might include "all Americans."(4) Yet the Court then clarified that "longstanding prohibitions" on gun ownership remained "presumptively lawful," such as laws precluding felons from possessing a gun.(5) Heller has sparked scores of challenges to gun control laws, including by felons(6) and drug addicts.(7)

Recently, in United States v. Portillo-Munoz,(8) the Fifth Circuit became the first federal court of appeals(9) to address the constitutionality of a federal statute that criminalizes an undocumented immigrant's possession of a firearm.(10) Relying on Heller, a divided panel upheld the statute, concluding that undocumented immigrants(11) do not have Second Amendment rights because they are not among "the people" in the Second Amendment.(12) The court was arguably correct to uphold the statute, but in dicta, the court noted that neither the Supreme Court nor the Fifth Circuit has held that undocumented immigrants possess Fourth Amendment rights, which also reside in "the people."(13) This statement was unnecessary in light of Heller, and it was unfortunate because the court implied that undocumented immigrants may not have Fourth Amendment rights when, in fact, that matter remains unresolved. Such dicta can have important consequences.

In 2005, Armando Portillo-Munoz came to the United States but left after six months.(14) He reentered illegally in 2009 and worked first at a dairy farm, and then at a ranch.(15) He had lived in the United States for approximately one and a half years when, on July 10, 2010, a Dimmitt, Texas, police officer stopped him while he was driving a four-wheeler with a handgun in the center console.(16) Portillo-Munoz admitted that the gun was his and said that he obtained it to protect chickens from coyotes on the ranch where he worked.(17) He was arrested for carrying a weapon unlawfully.(18) He admitted that he was a native and citizen of Mexico who was illegally in the United States.(19) His presentence report did not indicate any prior criminal history.(20)

The United States charged Portillo-Munoz with possession of a gun as an undocumented immigrant, in violation of 18 U.S.C. [section] 922(g)(5).(21) He moved to dismiss the indictment, arguing that a conviction would violate his Second Amendment rights and his Fifth Amendment due process rights.(22) After the district court denied this motion, he entered a conditional guilty plea; he admitted that his conduct violated the statute but he retained the right to appeal.(23) The district court sentenced him to ten months in prison, and he appealed.(24)

The Fifth Circuit affirmed the denial of Portillo-Munoz's motion to dismiss.(25) Writing for a divided panel, Judge Garwood(26) relied on the Supreme Court's opinion in Heller to conclude that Portillo-Munoz's conviction did not violate the Second Amendment. Judge Garwood noted that while the Supreme Court has not addressed whether undocumented immigrants have Second Amendment rights, Heller provided guidance about the meaning of "the people" in the Second Amendment.(27) The Heller Court held that the Second Amendment protects the right of "law-abiding, responsible citizens to use arms in defense of hearth and home."(28) In Heller, the Court also described Second Amendment rights as belonging to "all Americans" and noted that the Constitution's other references to "the people" referred to "all members of the political community."(29) These statements "invalidated" Portillo-Munoz's claim that he has Second Amendment rights, because undocumented immigrants are not Americans, law-abiding citizens, or members of the political community, the court said. …

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