Yesterday, in United States v. Portillo-Munoz, the Fifth Circuit held that illegal immigrants do not have Second Amendment rights. The defendant in the case was charged with being an illegal alien in possession of a firearm, in violation of 18 U.S.C. § 922(g)(5). He argued that the statute was unconstitutional, but the court concluded that "[w]hatever 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." It reasoned that "[i]llegal aliens are not 'law-abiding citizens' or 'members of the political community,' [terms previously used by the Supreme Court in describing the Second Amendment's reach] and aliens who enter or remain in this country illegally and without authorization are not Americans as that word is commonly understood." That holding is significant in its own right, but the court's discussion of the Fourth Amendment is potentially even more consequential. The defendant argued that the Fourth Amendment protects illegal immigrants, and that the Second Amendment should therefore extend to that group as well. The court responded in two ways. First, it stated that the scope of the Fourth Amendment, which it characterized as a "protective right against abuses by the government," may be broader than the scope of the Second Amendment, which it described as providing an "affirmative right to keep and bear arms." Second, and more importantly for present purposes, it expressed doubt about the premise, stating that "neither this court nor the Supreme Court has held [...]
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