Before you read what follows, answer the question.
Are “We The People”:
- the citizens of the body politic formed within these united States?
- those individuals residing lawfully within the jurisdiction of these united States?
- all people resident on land under the authority of these united States?
I think the answer requires a definition of context:
- For the purpose of establishing the Constitution and laws of the land, I believe (1).
- For the purpose of determining who shall have recourse to redress grievances, (2).
- For the protection of unalienable human rights, I extend to (3).
The 5th Circuit Court doesn’t agree with me.
The majority opinion in the case US v. Portillo-Munoz argued for (2), claiming the 2nd Amendment doesn’t apply to illegal aliens.
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 alien is indeed a person and has unalienable Rights:
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 much as I am disturbed by illegal imigration, Rights are inherent in people, not dependent upon their “status”. Any man should claim his right to self defense.
Full Story at the Tenth Amendment Center
