5th Circuit Rules Illegal Aliens Not Protected by 2A

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Bartholomew Roberts

Moderator
In United States vs. Portillo-Munoz, the Fifth Circuit has ruled that illegal immigrants have no Second Amendment rights. They reason that illegal immigrants are not part of "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." (The test from Verdugo-Urquidez). In addition the Court cited references in the Heller decision indicating that the Second Amendment right belonged to "law-abiding, responsible citizens", "all members of the political community", and "strong presumption that the Second Amendment right is exercised individually and belongs to all Americans."

As usual, the Volokh Conspiracy has ane excellent discussion of the decision.

There is nothing really earth-shattering or shocking in the decision; but I thought it was interesting in that it fleshed out the boundaries of who the Second Amendment applies to and it was also a case that had completely escaped my attention despite my interest in Second Amendment cases.
 
I find myself actually glad a court has made this determination. With all the other questions and dodgy answers regarding illegal immigrants we see today, an absolute from a circuit court seems a bit refreshing.
Not having read the discussion, do we expect an appeal?
 
Can't wait to hear that the ENTIRE U.S. Constitution is meant only for its citizens. Who'd ever known we would have to say that openly for some of these idiots?:confused:

-7-
 
This raises some interesting points. Consider the Due Process clause:

nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
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Now, if someone's arrested, tried, and found guilty of breaking the law, that's one thing. Until then, I'd be very, very wary of denying anyone constitutional protections. What about resident aliens? What about someone who just claimed political asylum?

In the case at hand, Portillo was an idiot. He's exactly the sort of plaintiff we've tried to avoid over the last few years. He broke the law. He got due process, and I've no problem with his gun being confiscated. The problem is his attorneys using this case to create a worrisome precedent.
 
I personally am glad about this ruling. When the constitution was put together wasn't it to determine the limits of governments and what citizen rights could not be infringed upon?

How can the rights and protections of the U.S. Constitution be extended to non-citizens?

Illegal immigration is a huge problem in my area. We've basically allowed Mexico's elite to export their social problems to the U.S. Not to mention the rest of South America's immigration to the U.S.

This ruling only benefits all law-abiding gun owners in the U.S.

Illegal aliens are not law abiding by definition - they commited a crime getting into the country and continue committing violations every day they are in the country illegally

Aren't responsible law abiding gun owners against the prospect of firearms getting into the hands of criminals?

This law only strengthens the Second Amendment Rights of law abiding gun owners. We should be all for it.
 
C0untZer0 said:
How can the rights and protections of the U.S. Constitution be extended to non-citizens?
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I think I'll let Madison's eloquence address the question:
Again, it is said, that aliens not being parties to the Constitution, the rights and privileges which it secures cannot be at all claimed by them.

To this reasoning, also, it might be answered, that although aliens are not parties to the Constitution, it does not follow that the Constitution has vested in Congress an absolute power over them. The parties to the Constitution may have granted, or retained, or modified the power over aliens, without regard to that particular consideration.

But a more direct reply is, that it does not follow, because aliens are not parties to the Constitution, as citizens are parties to it, that whilst they actually conform to it, they have no right to its protection. Aliens are not more parties to the laws, than they are parties to the Constitution; yet, it will not be disputed, that as they owe, on one hand, a temporary obedience, they are entitled in return to their protection and advantage.

If aliens had no rights under the Constitution, they might not only be banished, but even capitally punished, without a jury or the other incidents to a fair trial. But so far has a contrary principle been carried, in every part of the United States, that except on charges of treason, an alien has, besides all the common privileges, the special one of being tried by a jury, of which one-half may be also aliens.
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Yep Tom Servo, that would be from the 14th Amendment of the Constitution and so is part of the Constitution.

Don H's quote of Madison come his opinionated report that he made to the Virginia House of Delegates in December 1798 in the Report of 1799.
 
We commonly and historically have granted aliens some rights under the constitution - they enjoy 1st Amendment rights for example, but we haven't extended all rights such as the 15th Amendment.

So now the Supreme Court has spoken... the 2nd Amendment applies to citizens.
 
peetzakilla said:
The obvious question regarding Madison's quote would be, what does he mean, exactly, when he uses the word "alien".
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Well, I think this passage sums it up well:

"But a more direct reply is, that it does not follow, because aliens are not parties to the Constitution, as citizens are parties to it, that whilst they actually conform to it, they have no right to its protection. Aliens are not more parties to the laws, than they are parties to the Constitution; yet, it will not be disputed, that as they owe, on one hand, a temporary obedience, they are entitled in return to their protection and advantage."

Madison seems to condition his Constitutional protection on the alien conforming to the law, which would tend to suggest that he was addressing legal immigrants, though maybe it was just that Madison couldn't conceive of a major problem with illegal immigration and saw no distinction. However, I think the key point is that the protection they are entitled to is in return for their temporary obedience to our laws.

Countzero said:
So now the Supreme Court has spoken... the 2nd Amendment applies to citizens.
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No, just the 5th Circuit has ruled in a 3-judge panel. No word yet on whether the defendant will appeal, though I doubt it. IIRC, I think two of those judges sat on the Emerson decision also.
 
peetzakilla said:
To me, that implies that he's speaking of LEGAL aliens as I see no reason that an illegal would owe "temporary obedience".
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Sorry, but no.

Of course illegal aliens owe obedience, temporary or otherwise, to U.S. laws; if they're caught committing a crime, they'll be arrested and tried for it like anyone else (and then likely deported, but that's a separate issue). No one is going to say to them, "Oh, never mind, you're an illegal alien so you don't have to obey the law." :rolleyes:

Tom Servo has it right. The right to due process under U.S. law applies to every person in U.S. jurisdiction. It doesn't matter that someone is committing a crime by being here; he's still entitled to Constitutional protections. It's a very scary thing that it's now seen as acceptable to deny anybody in the U.S., temporarily or otherwise, the protection of the Constitution. (If you don't think we're all at risk from this trend, consider that the President has recently authorized the extrajudicial murder of at least one native-born U.S. citizen... if this doesn't scare you, you haven't thought about it enough.)
 
Y'all should go back and read Madison's full report. He does not speak of legal and illegal aliens, but of enemy and friendly aliens.

I may be wrong, but at the time, I do not believe that there were such things as illegal aliens per se as immigration into the US was not being limited federally or fully monitored.
 
They "owe" obedience to that which, if they were to obey it, would preclude their very presence?

Isn't that a bit like a convicted felon being required to license his illegal gun?
 
Can't wait to hear that the ENTIRE U.S. Constitution is meant only for its citizens. Who'd ever known we would have to say that openly for some of these idiots?
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Agree.
That is also my justification for water boarding terrorists.
 
I guess illegal immigrants do not have rights under the bill of rights either? No 1st or 4th, etc as well.

The reference to "law abiding" does not speak well of the court if that is taken into account if someone is afforded protections "rights" in the bill of rights. Every get a parking or speeding ticket? well guess what you are no longer "law abiding", bye bye civil rights...
 
For the record: legal alien residents (such as green-card holders) have been declared protected by the 2nd. They have the RKBA. Those on temp visitor or student visas, I don't think they've sorted that out yet.

There's another question not asked yet. What about people in other countries that we are more or less in control of? Afghanistan, Iraq, etc.? Is the RKBA "universal"? I think there's a lot of evidence that it is!
 
I may be wrong, but at the time, I do not believe that there were such things as illegal aliens per se as immigration into the US was not being limited federally or fully monitored.
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AFAIK the first federal immigration law was the Page Act of 1875, which outlawed immigration by anyone who was a convict in their own country, and anyone from Asia who intended to work as a contract laborer or prostitute. The latter provision was enforced in a way that effectively prevented almost any woman from China from emigrating, a policy more or less openly intended to prevent Chinese families from having what would now be termed "anchor babies". An unintended side effect was that it ironically encouraged prostitution amongst the few available legal Chinese immigrant women. :rolleyes:

This law was followed by the Chinese Exclusion Act of 1882, a true example of a law designed to do exactly what its title says; it banned Chinese immigration for 10 years and barred prior Chinese immigrants from naturalizing. This law had its own ironic unintended side effects: creation of the USA's first illegal immigrant underclass, and creation of the USA's first human smugglers. Most of what I've read indicates that the law did not accomplish what its writers intended: make the Chinese leave. They stayed- just illegally. The more things change, the more they stay the same. :rolleyes:
 
Tom Servo has it right.
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Oooh! Say it again! Yeah, that does the ego good...;)

If we accept that the 2nd Amendment protects a basic right (ownership of firearms for self defense), and that the 14th Amendment guarantees basic rights to all persons within our borders, then we run into a constitutional challenge to the provisions of § 922 denying illegal aliens the right to a major means of self defense.

Of course, once they're tried and found guilty of breaking immigration laws, they're not law abiding. So, is a violation of immigration laws a serious enough of an offense to bar the guilty party from owning a firearm?

I'm no fan of illegal immigration, and I'm all for sending those who don't respect our laws back home, but this does raise some interesting issues.
 
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