A divided panel of the U.S. Court of Appeals for the Fifth Circuit held that the Second Amendment to the U.S. Constitution does not apply to undocumented individuals. United States v. Portillo-Muñoz, No. 11-10086, slip op. (5th Cir. June 13, 2011) (Garwood, Garza, and Dennis, J.). Judge Garwood wrote the majority opinion joined fully by Judge Garza. Judge Dennis wrote a separate opinion concurring in part, but dissenting on the majority’s main points.
This case involved an individual who admitted to entering the United States without inspection. He lived in Texas for approximately 18 months with no criminal interactions while working first at a dairy farm, then as a ranch hand. While working as a ranch hand he bought a gun “to protect the chickens at the ranch from coyotes,” a statement that was not disputed in either opinion. Portillo-Muñoz, No. 11-10086, slip op. at 2.
This case resulted when police in Dimmit, Texas were “notified that a person at the Rodeo Arena…was ‘spinning around’ on a red motorcycle with a gun in his waistband.” Portillo-Muñoz, No. 11-10086, slip op. at 1. He entered a conditional guilty plea to one count of being a noncitizen unlawfully in the United States in possession of a firearm, 18 U.S.C. § 922(g)(5). Portillo-Muñoz, No. 11-10086, slip op. at 2. He argued that the statute violates the Second Amendment right to bear arms. Portillo-Muñoz, No. 11-10086, slip op. at 2.
The majority began by noting that “[w]hether the protections contained in the Second Amendment extend to aliens illegally present in this country is a matter of first impression in this circuit.” Portillo-Muñoz, No. 11-10086, slip op. at 3. Furthermore, “none of our sister circuits have done so”—that is, addressed the Second Amendment’s application to undocumented people. Portillo-Muñoz, No. 11-10086, slip op. at 3.
The outcome of this case would turn on whether undocumented individuals are included within “the people” to whom the Second Amendment extends “the right…to keep and bear arms.” Portillo-Muñoz, No. 11-10086, slip op. at 3-4. The Supreme Court’s leading Second Amendment decision, District of Columbia v. Heller, 128 S.Ct. 2783 (2008), the majority noted, “does provide some guidance as to the meaning of the term ‘the people’ as it is used in the Second Amendment.” Portillo-Muñoz, No. 11-10086, slip op. at 4. The Heller Court mentioned “law-abiding, responsible citizens” and explained “that the Second Amendment right is exercised individually and belongs to all Americans.” Heller, 128 S.Ct. at 2790-91, 2821.
The Fifth Circuit extrapolated from these references a definition of “the people” that excludes undocumented people: “Illegal aliens are not ‘law-abiding, responsible citizens’ or ‘members of the political community,’ and aliens who enter or remain in this country illegally and without authorization are not Americans as that word is commonly understood.” Portillo-Muñoz, No. 11-10086, slip op. at 4. Interestingly, the majority did not cite to any source for support of either proposition: that undocumented people are not “law-abiding citizens” or that they are not commonly understood as “Americans.”
Accordingly, the Fifth Circuit held that the Second Amendment did not apply to undocumented people: “Whatever else the term means or includes, the phrase ‘the people’ in the Second Amendment of the Constitution does not include aliens illegally in the United States such as Portillo, and we hold that section 922(g)(5) is constitutional under the Second Amendment.” Portillo-Muñoz, No. 11-10086, slip op. at 7-8.
This could have been sufficient to decide the issue at hand, but the Fifth Circuit did not stop there. Instead, the majority went on to cast doubt on whether the Fourth Amendment limits governmental action regarding undocumented individuals.
The majority noted that in United States v. Verdugo-Urquidez, 110 S.Ct. 1056, 1061 (1990), the Supreme Court explained that “the people” referred to in the First, Second, and Fourth 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-Muñoz, No. 11-10086, slip op. at 5.
What the majority did not mention was that Verdugo-Urquidez was factually very different from Portillo-Muñoz. Verdugo-Urquidez involved a defendant who was apprehended in México by Mexican police officers who turned him over to U.S. Drug Enforcement Agency agents at the border who in turn brought him into the United States and took him directly to prison. While in prison, the DEA arranged to have his home searched in México. The DEA never sought a warrant from a U.S. or Mexican court. Instead, they called the Mexican Federal Police and asked for their cooperation, which they received. The Supreme Court determined that Verdugo-Urquidez had no Fourth Amendment rights because he was not part of “the people” contemplated by that amendment.
To support its position that undocumented people are not part of “the people” described in the Second and Fourth Amendments, the majority explained that “neither this court nor the Supreme Court has held that the Fourth Amendment extends to a native and citizen of another nation who entered and remained in the United States illegally.” Portillo-Muñoz, No. 11-10086, slip op. at 5.
To accomplish this feat, the majority describes the Second Amendment as an “affirmative right” and the Fourth Amendment as a “protective right against abuses by the government.” Portillo-Muñoz, No. 11-10086, slip op. at 5. It would be reasonable, the majority followed, “that an affirmative right would be extended to fewer groups than would a protective right.” Portillo-Muñoz, No. 11-10086, slip op. at 6.
To support this novel distinction, the majority cited a Second Circuit decision in which that court “approvingly quote[d] the district court’s statement that ‘one seeking to arrange an assassination would be especially eager to hire someone who had little commitment to this nation’s political institutions and who could disappear afterwards without a trace.” Portillo Muñoz, No. 11-10086, slip op. at 6 (quoting United States v. Toner, 728 F.2d 115, 129 (2d Cir. 1984)). All that I can deduce from this statement is that presumably undocumented people lack commitment to the United States’ political institutions, can disappear without a trace, and are more willing to assassinate for hire.
The majority also concluded that Portillo waived a Fifth Amendment due process challenge to the statute. Portillo-Muñoz, No. 11-10086, slip op. at 8. Judge Dennis concurred with the majority on this point only. Portillo-Muñoz, No. 11-10086, slip op. at 10.
The bulk of Judge Dennis’ opinion attacks the majority’s definition of “the people: a denial of First and Fourth Amendment rights to undocumented people because both “plainly refer to the right of ‘the people’ to be free from unwarranted governmental intrusion….” Portillo-Muñoz, No. 11-10086, slip op. at 13 (Dennis, J., dissenting).
Judge Dennis also points out the logical consequence of the majority’s definition: “The majority’s determination that Portillo-Muñoz is not part of ‘the people,’ effectively means that millions of similarly situated residents of the United States are ‘non-persons’ 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.” Portillo-Muñoz, No. 11-10086, slip op. at 10-11 (Dennis, J., dissenting).
“The majority’s reasoning,” he added, “renders them vulnerable—to governmental intrusions on their homes and persons, as well as interference with their rights to assemble and petition the government for redress of grievances—with no recourse.” Portillo-Muñoz, No. 11-10086, slip op. at 14 (Dennis, J., dissenting).
Judge Dennis then explained that he would have determined that Portillo-Munoz met the Verdugo-Urquidez Court’s test for determining whether someone is part of “the people” contemplated by the First, Second, and Fourth Amendments: “Portillo-Munoz plainly satisfies both criteria of the substantial connections test under Verdugo-Urquidez and Martinez Aguero [v. Gonzalez, 459 F.3d 618 (5th Cir. 2006), a follow-up Fifth Circuit decision]: he is voluntarily present in the United States and has accepted several societal obligations.” Portillo-Muñoz, No. 11-10086, slip op. at 18 (Dennis, J., dissenting).