Sunday, June 26, 2011

Illegal Immigrants and the Bill of Rights

-Submitted by David Drumm (Nal), Guest Blogger
Do illegal immigrants have a Second Amendment right to own guns? In the case of United States v. Portillo-Munoz, the U.S. Court of Appeals for the Fifth Circuit held that illegal immigrants are not part of the “people” protected by the Second Amendment and have no constitutional right to bear arms.

Defendant-appellant Armando Portillo-Munoz was arrested by a Dimmit, Texas police officer who found a .22 caliber handgun in the center console of a four-wheeler driven by Portillo. Portillo indicated to officers that the handgun was used to shoot coyotes at a ranch he worked at. Portillo admitted to being a native and citizen of Mexico and illegally present in the United States.

Portillo’s attorneys filed a motion to dismiss, alleging that conviction under under 18 U.S.C. § 922(g)(5), which makes it unlawful for an illegal alien to possess a firearm or ammunition, would violate the Second Amendment. The district court denied the motion to dismiss and Portillo entered a conditional guilty plea. The Fifth Circuit affirmed the district court’s denial of the motion to dismiss.

In its decision, the Fifth Circuit Court noted that in District of Columbia v. Heller, the individual was a United States citizen, so the question of whether an alien, legal or illegal, has a right to bear arms has not been addressed.

The Fifth Circuit Court then references the case of United States v. Verdugo-Urquidez, where the Supreme Court held that its analysis of the Constitution “suggests that ‘the people’ protected by the Fourth Amendment, and by the First and Second 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 argued that he had sufficient connections to the United States to be considered part of “the people.” The FIfth Circuit Court disagreed, holding that the term “the people”, as far as the Second Amendment is concerned,” does not include illegal immigrants.

In the dissent, Judge Dennis writes:
The sole basis for the majority’s conclusion that Portillo-Munoz should not be considered part of “the people” is that he is unlawfully present in the United States. However, this rationale is wholly unsupported by the applicable precedents.
The Constitution is quite deliberate with its usage of the terms, “person”, “persons”, and “people”. The “people” have the right to peaceably assemble and petition the government, the “people” have the right to keep and bear arms, and the “people” have the right against unreasonable searches and seizures. However, since the Due Process Clause, which incorporated the Second Amendment, covers any “person”, including illegal immigrants, doesn’t this trump the “people?”

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