View Full Version : Why we are not done yet in court: United States v. Portillo-Munoz, 5th Circuit

06-13-2011, 5:19 PM
Volokh (http://volokh.com/2011/06/13/the-constitutional-rights-of-illegal-aliens-under-the-first-second-and-fourth-amendments/) has the article, (the meat of the opinion appears to be The courts have made clear that the Constitution does not prohibit Congress from making laws that distinguish between citizens and aliens and between lawful and illegal aliens. We find that analysis persuasive in interpreting the text of the Second Amendment. 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. ) and provides this quote from the dissent:But Judge Dennis dissents:

The majority concludes that Portillo-Munoz, a ranch hand who has lived and worked in the United States for more than 18 months, paid rent, and helped supported a family — but who committed the misdemeanor of illegally crossing the border — is not part of “the people.” Supreme Court and Fifth Circuit precedent recognize that the phrase “the people” has the same meaning in the First, Second, and Fourth Amendments. The majority’s determination that Portillo-Munoz 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. In my view, Portillo-Munoz clearly satisfies the criteria given by the Supreme Court and our court for determining whether he is part of “the people”: he has come to the United States voluntarily and accepted some societal obligations.

Of course, whether 18 U.S.C. 922(g)(5) violates the Second Amendment is a separate question from whether Portillo-Munoz is part of “the people” who have First, Second, and Fourth Amendment rights. I would remand for the district court to consider in the first instance the applicable level of scrutiny under the Second Amendment, and whether the provision passes muster under that level of scrutiny.

[Footnote: Since District of Columbia v. Heller, 554 U.S. 570 (2008), courts of appeal have taken various approaches to scrutinizing laws regarding firearms.

See, e.g., Nordyke v. King, No. 07–15763, 2011 WL 1632063, at *5 (9th Cir. May 2, 2011) (applying a “substantial burden” test to determine whether to apply heightened scrutiny to county ordinance);

United States v. Chester, 628 F.3d 673, 682–83 (4th Cir.2010) (applying intermediate scrutiny to review of 922(g)(9));

United States v. Reese, 627 F.3d 792, 801–02 (10th Cir.2010) (applying intermediate scrutiny to review of 922(g)(8));

United States v. Williams, 616 F.3d 685, 692–94 (7th Cir.2010) (applying intermediate scrutiny to review of 922(g)(1));

United States v. Skoien, 614 F.3d 638, 641–42 (7th Cir.2010) (en banc) (declining to label the level of scrutiny being applied, but upholding 922(g)(9) because “logic and data establish a
substantial relation between” the subsection and an “important governmental objective”);

United States v. Marzzarella, 614 F.3d 85, 96–98 (3d Cir.2010) (applying a sliding scale test to determine the appropriate level of scrutiny for evaluating 922(k)).] ...
There's a certain lack of clarity out there...