Who are “the People”?

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by Jeff Matthews

While attending a continuing legal education course today, I learned of an interesting case recently issued by the federal 5th Circuit Court of Appeals.  I have never considered that arguments might arise over what the framers meant by “the people” and thought you, too, might find this an interesting issue.

In US v. Portillo-Munoz, 2011 WL 2306248 (5th Cir., June 13, 2011), at issue was the Constitutionality of a federal statute, 18 USC  § 922(g)(5), making it a crime for an illegal alien to possess a firearm.  Portillo-Munoz came to Texas illegally and took employment on a farm outside of Dimmit.   He carried a .22 caliber gun for protecting himself and protecting his employer’s chickens from coyotes.   He had no criminal history.

The 5th Circuit held, with Justice Dennis dissenting, that the statute was not a violation of the Second Amendment’s right to bear arms.   The majority held that the Second Amendment’s use of “the people” referred only to certain people excluding illegal aliens and that “the people” did not mean the same thing wherever it is used in the Constitution.  The majority wrote:

In United States v. Verdugo–Urquidez, the Court held that its analysis of the Constitution “suggests that ‘the people’ protected by the Fourth Amendment, and by the First and Second Amendments, … 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.” 494 U.S. 259, 110 S.Ct. 1056, 1061, 108 L.Ed.2d 222 (1990). Portillo relies on Verdugo-Urquidez and argues that he has sufficient connections with the United States to be included in this definition of “the people,” but neither this court nor the Supreme Court has held that the Fourth Amendment extends to a native and citizen of another nation who entered and remained in the United States illegally. ¹

Moreover, even if there were precedent for the proposition that illegal aliens generally are covered by the Fourth Amendment, we do not find that the use of “the people” in both the Second and the Fourth Amendment mandates a holding that the two amendments cover exactly the same groups of people.  The purposes of the Second and the Fourth Amendment are different. The Second Amendment grants an affirmative right to keep and bear arms, while the Fourth Amendment is at its core a protective right against abuses by the government. Attempts to precisely analogize the scope of these two amendments is misguided, and we find it reasonable that an affirmative right would be extended to fewer groups than would a protective right.

The majority failed to state who “the people” are, but stated it this way:  “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…”

The dissent argued that:

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…”

… I find the majority’s attempt, in dicta, to limit its reasoning to the Second Amendment context to be unconvincing. The majority labels the Second Amendment an “affirmative right” and the Fourth Amendment a “protective right.” Maj. Op. ––––. This distinction, unfortunately, is unpersuasive. The majority’s characterization of the Second Amendment as an affirmative right is contradicted by Heller: “[I]t has always been widely understood that the Second Amendment, like the First and Fourth Amendments, codified a pre-existing right. The very text of the Second Amendment implicitly recognizes the pre-existence of the right and declares only that it ‘shall not be infringed.’ ” 554 U.S. at 592, 128 S.Ct. 2783. Both the Second and Fourth Amendments plainly refer to the right of “the people” to be free from unwarranted governmental intrusion—whether in the form of unreasonable searches or seizures, or in the form of infringements on the right to bear arms. See U.S. Const. amend. II (stating that “the right of the people to keep and bear Arms shall not be infringed” (emphasis added)); U.S. Const. amend. IV (“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause….” (emphasis added)). Moreover, the majority’s reasoning implicates not only the Fourth Amendment, but also the First Amendment, which similarly prohibits Congress from “ abridging … the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” U.S. Const. amend. I (emphasis added).

There are countless persons throughout Texas, Louisiana, and Mississippi, who, like Portillo–Munoz, work for employers, pay rent to landlords, and support their loved ones, but are unlawfully residing in the United States. The majority’s reasoning renders them vulnerable—to governmental intrusions on their homes and persons, as well as interference with their rights to assemble and petition the government for redress of grievances—with no recourse.

The majority’s categorical conclusion that persons like Portillo–Munoz are not part of “the people” is also incongruous with the holding of the Supreme Court in Plyler v. Doe, 457 U.S. 202, 102 S.Ct. 2382, 72 L.Ed.2d 786 (1982): “Whatever his status under the immigration laws, an alien is surely a ‘person’ in any ordinary sense of that term. Aliens, even aliens whose presence in this country is unlawful, have long been recognized as ‘persons’ guaranteed due process of law by the Fifth and Fourteenth Amendments.” Id. at 210, 102 S.Ct. 2382 (citing cases). It would be strange for the same founders who contemporaneously adopted the First, Second, Fourth, and Fifth Amendments to have intended for the Fifth Amendment to cover a different class of persons than the other three amendments, considering that “people” is merely the plural of “person.”

As both the majority’s and dissent’s arguments make clear, this is a very interesting issue.   While it is tempting for some to want to assert that Congress ought to be able to criminalize possession of firearms by illegal aliens since they are supposedly not of “the people,” this reasoning would impliedly authorize government officials to ban all forms of speech by illegal immigrants as well as to conduct all sorts of warrantless searches and seizures, no matter how unreasonable.   Consider the effect of such a holding on a situation where an officer engages in an unreasonable search and seizure on the good faith, but mistaken, belief that the subject of his search was an illegal alien.   Of course, one could always suggest, as did the majority, that the Second Amendment grants a right to the people, while the other amendments recognize pre-existing rights of the people that the government may not violate, but this latter distinction seems unconvincing.

1.  The majority and dissent see Portillo-Munoz’s reliance on Martinez-Aguero differently.  In Martinez-Aguero, Fourth Amendment protections were recognized for an illegal alien, but the majority says that the court did not hold that these protections are afforded to all illegal aliens.   The majority holds that the facts of that case and of Portillo-Munoz’s case are too different.

The majority wrote:

Portillo cites to this court’s decision in Martinez–Aguero v. Gonzalez as holding that a non-citizen illegally present in the United States was protected by the Fourth Amendment. 459 F.3d 618 (5th Cir.2006). The alien in that case, Martinez–Aguero, was a Mexican national who visited the United States on a monthly basis using a visitor’s visa. Prior to the incident at issue in the case, during which she was subjected to excessive force by a border-patrol agent, Martinez–Aguero had applied for an updated visa and was incorrectly told by United States immigration officials that she could use her old card in the interim period. The court did not implicitly or explicitly hold that illegal aliens as a class are covered by the Fourth Amendment, and the facts of the case are so very dissimilar from those in Portillo’s case that we do not find the court’s decision especially persuasive here.

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In response, the dissent viewed the case differently and stated:

In Martinez–Aguero, this court held that an alien who attempted to enter the United States in an unlawful manner was part of “the people” under the purposes of the Fourth Amendment. 459 F.3d at 625. The alien, who did not reside in the United States but regularly crossed the border to visit family, attempted to enter with an expired visa, which American consular officials had incorrectly told her would suffice for her border crossings. Id. at 620. This court held that the alien’s “regular and lawful entry of the United States pursuant to a valid border-crossing card and her acquiescence in the U.S. system of immigration constitute her voluntary acceptance of societal obligations.” Id. at 625 (footnote omitted). The Martinez–Aguero court never indicated that attempting to comply with United States immigration laws is the only way that an alien can accept some societal obligations. On the contrary, the opinion suggested that the standard for establishing substantial connections is not high and that there would be few, if any, cases where an alien who was voluntarily within the United States would be unable to establish such connections. Id. (“There may be cases in which an alien’s connection with the United States is so tenuous that he cannot reasonably expect the protection of its constitutional guarantees….” (emphases added)).

Jeff Matthews [send him email] is a practicing attorney in Houston. He graduated from the University of Texas, School of Law in 1993 and was licensed that year.

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