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

Harvard Law Review, January 2012 | Go to article overview

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


CONSTITUTIONAL LAW--SECOND AMENDMENT--FIFTH CIRCUIT HOLDS THAT UNDOCUMENTED IMMIGRANTS DO NOT HAVE SECOND AMENDMENT RIGHTS.--United States v. Portillo-Munoz, 643 F.3d 437 (5th Cir. 2011).

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. …

The rest of this article is only available to active members of Questia

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Default project is now your active project.
Project items
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Buy instant access to cite pages or passages in MLA 8, MLA 7, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

(Einhorn 25)

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Note: primary sources have slightly different requirements for citation. Please see these guidelines for more information.

Cited article

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

Settings

Typeface
Text size Smaller Larger Reset View mode
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Help
Full screen
Items saved from this article
  • Highlights & Notes
  • Citations
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

matching results for page

    Questia reader help

    How to highlight and cite specific passages

    1. Click or tap the first word you want to select.
    2. Click or tap the last word you want to select, and you’ll see everything in between get selected.
    3. You’ll then get a menu of options like creating a highlight or a citation from that passage of text.

    OK, got it!

    Cited passage

    Style
    Citations are available only to our active members.
    Buy instant access to cite pages or passages in MLA 8, MLA 7, APA and Chicago citation styles.

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

    1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

    Cited passage

    Thanks for trying Questia!

    Please continue trying out our research tools, but please note, full functionality is available only to our active members.

    Your work will be lost once you leave this Web page.

    Buy instant access to save your work.

    Already a member? Log in now.

    Search by... Author
    Show... All Results Primary Sources Peer-reviewed

    Oops!

    An unknown error has occurred. Please click the button below to reload the page. If the problem persists, please try again in a little while.