Fifth Circuit Suggests Undocumented Immigrants Have No Fourth Amendment Rights

By Ian Millhiser

Several constitutional amendments refer to rights that belong to “the people.” The Second Amendment refers to “the right of the people to keep and bear Arms.” The Fourth Amendment provides that “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.” According to a sharply divided panel of the U.S. Court of Appeals for the Fifth Circuit, this choice of words means that undocumented immigrants have no Second Amendment rights and may also not be able to invoke the Fourth Amendment’s shield against illegal searches and arrests:

[T]he Court’s language does provide some guidance as to the meaning of the term “the people” as it is used in the Second Amendment. The Court held the Second Amendment “surely elevates above all other interests the right of law-abiding, responsible citizens to use arms in defense of hearth and home.” Furthermore, the Court noted that “in all six other provisions of the Constitution that mention ‘the people,’ the term unambiguously refers to all members of the political community, not an unspecified subset.” [...] Illegal aliens are not “law-abiding 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.
Prior to its decision in Heller, the Supreme Court interpreted the meaning of the phrase “the people” in the context of the Fourth Amendment and indicated that the same analysis would extend to the text of the Second Amendment…but 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.

The court’s suggestion that the Fourth Amendment doesn’t apply to undocumented immigrants is obviously wrong. Even if such immigrants don’t count as part of “the people,” the Supreme Court held in Mapp v. Ohio that the Constitution’s guarantee that no “person” may be denied liberty without due process of law includes the right to be free from illegal searches and seizures. And, in light of the Supreme Court’s bizarre conclusion that corporations count as “persons,” it would be quite a stretch to claim that actual human beings who happen to have entered the United States illegally are somehow not persons.
It’s also worth noting that at least one of the Fifth Circuit judges who decided this case is an unusually radical member of an unusually radical court. Judge Emilio Garza, who was briefly floated as a possible George W. Bush nominee to the Supreme Court, is best known for being one of five Fifth Circuit judges who held that a death row defendant whose lawyer slept through much of his trial was not denied his constitutional right to counsel.
While Garza’s view was ultimately deemed too radical by a majority of his colleagues, such restraint is rare in the Fifth Circuit. Last year, the Fifth Circuit sanctioned a former high school cheerleader because she brought a lawsuit claiming that she shouldn’t be required to cheer for her alleged rapist. More recently, the House GOP attempted to shift several key oil drilling cases to the Fifth Circuit after the court’s judges made it clear that they would give the oil industry favorable treatment.
Two Fifth Circuit judges, Jerry Smith and Eugene Davis, even ruled in favor of the oil industry in a major drilling moratorium case despite the fact that they both attended expense-paid “junkets for judges” sponsored by an oil-industry funded organization. A third Fifth Circuit judge, Edith Clement, serves on the board of this organization, despite an opinion from the federal judiciary’s ethics committee saying that Clement violates her ethical obligations by remaining on this board.