The Volokh Conspiracy
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Fifth Circuit Won't Revisit Its Earlier Precedent Holding Illegal Aliens Lack Second Amendment Rights
From yesterday's decision in U.S. v. Medina-Cantu, by Judge Carolyn Dineen King and Kurt Engelhardt:
In U.S. v. Portillo-Munoz (5th Cir. 2011), this court held that 18 U.S.C. § 922(g)(5), which prohibits an illegal alien from possessing a firearm or ammunition, is constitutional under the Second Amendment. In the present case, Defendant-Appellant Jose Paz Medina-Cantu brings another Second Amendment challenge to § 922(g)(5), arguing that Portillo-Munoz has been abrogated by the Supreme Court's decisions in New York State Rifle & Pistol Ass'n v. Bruen (2022), and U.S. v. Rahimi (2024).
We agree with the Government and hold that the Supreme Court's decisions in Bruen and Rahimi did not unequivocally abrogate Portillo-Munoz's precedent. As such, under this circuit's rule of orderliness, we are bound to follow Portillo-Munoz….
We acknowledge that there are reasonable arguments as to why Portillo-Munoz should be reconsidered post-Bruen and Rahimi. For instance, Portillo-Munoz's textual interpretation of the Second Amendment notably did not include a historical analysis, relying instead on the Supreme Court's language in Heller. And Rahimi's discussion of the term "responsible" provides some indication that the Supreme Court may, in future cases, reject other arguments that the Second Amendment's reference to "the people" excludes certain individuals. But, absent clearer indication that Portillo-Munoz has been abrogated, only the Supreme Court—or this court sitting en banc—can overturn our precedent….
Judge Jim Ho concurred in the judgment, concluding that Portillo-Munoz was indeed consistent with Bruen and Rahimi:
The defendant here contends that Portillo-Munoz is no longer good law, in light of recent decisions from the Supreme Court. But there's no basis to question our precedent.
To begin with, no Supreme Court precedent compels the application of the Second Amendment to illegal aliens—and certainly not Bruen or Rahimi. That should be the end of the matter. We should not extend rights to illegal aliens any further than what the law requires. Cf. Young Conservatives of Texas Foundation v. Smatresk (5th Cir. 2023) (Ho, J., dissenting from denial of rehearing en banc) ("Our national objectives are undercut when [we] encourage illegal entry into the United States.").
Moreover, it's already well established that illegal aliens do not have Second Amendment rights. In United States v. Verdugo-Urquidez (1990), the Court noted that "the people" is "a term of art employed in select parts of the Constitution"—namely, the First, Second, Fourth, Ninth, and Tenth Amendments. The term "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."
To be sure, Verdugo-Urquidez involved the interpretation of the Fourth Amendment, not the Second. But the Court later quoted this same passage verbatim when it was determining the proper reading of the Second Amendment in D.C. v. Heller (2008).
Illegal aliens don't qualify under the definition of "the people" set forth in Verdugo-Urquidez and Heller—not as a matter of common sense or Court precedent.
As to common sense, an illegal alien does not become "part of a national community" by unlawfully entering it, any more than a thief becomes an owner of property by stealing it.
And as to precedent, the Court has repeatedly explained that "an alien … does not become one of the people to whom these things are secured by our Constitution by an attempt to enter forbidden by law." United States ex rel. Turner v. Williams (1904) (quoted in Verdugo-Urquidez). But that's, of course, the very definition of an illegal alien—one who "attempts to enter" our country in a manner "forbidden by law." So illegal aliens are not part of "the people" entitled to the protections of the Second Amendment.
Moreover, the Court has provided further reason why it reaches this conclusion. For an illegal alien "[t]o appeal to the Constitution is to concede that this is a land governed by that supreme law." And "the power to exclude [aliens from the United States] has been determined to exist" under our Constitution. So, the Court concluded, "those who are excluded cannot assert the rights in general obtaining in a land to which they do not belong as citizens or otherwise."
Eileen K. Wilson, Carmen Castillo Mitchell, and Charles McCloud represent the government.
