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June 19, 2011

Notable Fifth Circuit ruling about who isn't covered by the Second Amendment

Thanks to the US Open, it has taken me a while to get the time to read the interesting recent Fifth Circuit ruling about the scope of the Second Amendment in US v. Portillo-Munoz, No. 11-10086 (5th Cir. June 13, 2011) (available here).  Here is a key passage from the panel majority's discussion:

The individual laying claim to the Second Amendment’s protections in Heller was a United States citizen, so the question of whether an alien, illegal or legal, has a right to bear arms was not presented, and the Court took care to note that it was not purporting to “clarify the entire field” of the Second Amendment. Id. at 2821.  However, the 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.” Id. 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” before going on to say that “[w]e start therefore with a strong presumption that the Second Amendment right is exercised individually and belongs to all Americans.”  Id. at 2790-91.  The Court’s language in Heller invalidates Portillo’s attempt to extend the protections of the Second Amendment to illegal aliens.  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.

In a lengthy partial dissent, Judge Dennis expresses concern about the majority's ruling that raises questions about "whether aliens such as Portillo-Munoz are part of 'the people,' and have any rights at all, under the First, Second, and Fourth Amendments."  Regular readers of this blog know that what really interests me about the majority's ruling is whether and how it might impact application of the Second Amendment to another large class of persons, namely felons who are indisputably Americans, but have often are deemed excluded from the Second Amendment's protection because they were not always "law-abiding citizens" (even though they would generally seem to be "members of the political community"). 

June 19, 2011 at 05:16 PM | Permalink

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Comments

Frankly, the definition of "law-abiding" here is KEY. Obviously, felons have not been law-abiding at a definite time in the past, however, by being released, they are, by definition, law-abiding at this point.

Posted by: Eric Knight | Jun 20, 2011 9:14:16 AM

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