Federal Corner: Who Are The People? – By F. R. Buck Files Jr.


We all know those first words of the Constitution of the United States: “We the people of the United States . . .” But who are the people? Would the people—or a group of the people—be entitled to the same constitutional guarantees under the Second Amendment and/or Fourth Amendment and/or the Fifth Amendment?

Just recently, a panel of the United States Court of Appeals for the Fifth Circuit was confronted with this issue on a Second Amendment analysis and could not agree as to the meaning of the people. United States v. Portillo-Munoz, ___F.3d___, 2011 WL 2306248 (5th Cir. 2011) [Panel: Circuit Judges Garwood, Garza, and Dennis (dissenting)]. This is a case of first impression—not only in the Fifth Circuit but in all the Circuits.

The Facts in Portillo

Portillo was an illegal alien who was arrested by a city police officer in Dimmit, Texas, for unlawfully carrying a weapon and for possession of a controlled substance (cocaine). The weapon was a .22-caliber pistol Portillo said that he used to protect the chickens from coyotes at the ranch where he worked. He had been employed at this ranch for six months.

What Occurred in the District Court

This must have appeared to be a “fish-in-the-barrel” case to the government. Portillo was indicted for one count of an alien, illegally and unlawfully present in the United States, being in possession of a firearm [18 U.S.C. § 922 (g)(5)]. Portillo’s attorneys viewed the case in a different light. They filed a motion to dismiss, alleging that a conviction under the statute would violate Portillo’s rights under the Second Amendment and the Fifth Amendment (Due Process Clause). United States District Judge Mary Lou Robinson of the Northern District of Texas denied relief.

Portillo then entered a conditional guilty plea. During the plea hearing, he admitted that he was a Mexican citizen who was illegally present in the United States, and that he had knowingly possessed a firearm in or affecting commerce which had been shipped or transported in interstate commerce. Judge Robinson sentenced Portillo to ten months imprisonment to be followed by three years of supervised release. He timely appealed.

What Occurred at the Court of Appeals

A divided panel affirmed the judgment of the District Court. [Note: All the judges agreed that Portillo was not entitled to relief on his Fifth Amendment claim, and I have omitted those portions of the Court’s opinion and the dissenting opinion having to do with that issue.] Judge Garwood authored the opinion for the Court, which reads, in part, as follows:

[The Statute]

Under the laws of the United States, “[i]t shall be unlawful for any person . . . who, being an alien . . . illegally or unlawfully in the United States . . . to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.” 18 U.S.C. § 922(g)(5). There is no question that Portillo’s conduct violated this statute.

[The Issue Before the Court]

We are only asked to decide if Portillo’s conviction un­der this statute violates the United States Constitution. Whether the protections contained in the Second Amendment extend to aliens illegally present in this country is a matter of first impression in this circuit. Sev­eral district courts have previously considered the constitutionality of this statute, but none of our sister circuits have done so.

[The Second Amendment]

The text of the Second Amendment reads: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” [Emphasis added.]

[The Court’s Reasoning Under Heller]

In 2008, the Supreme Court held in District of Columbia v. Heller that the Second Amendment guarantees an individual right to possess and carry weapons. 554 U.S. 570, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008). 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.

[The Court’s Reasoning Under Verdugo-Urquidez]

Prior to its decision in Heller, the Supreme Court interpreted the meaning of the phrase “the people” in the context of the Fourth Amendment and indicated that the same analysis would extend to the text of the Second Amendment. 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.

[Second Amendment v. Fourth Amendment
v. Fifth Amendment]

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 Second Circuit laid out compelling reasons for why an illegal alien could not claim that a predecessor statute to section 922(g)(5) violated the Fifth Amendment right to equal protection by saying that “illegal aliens are those who . . . are likely to maintain no permanent address in this country, elude detection through an assumed identity, and—already living outside the law—resort to illegal activities to maintain a livelihood.” United States v. Toner, 728 F.2d 115, 128–29 (2d Cir.1984). The court went on to approvingly quote the district court’s statement that “one seeking to arrange an assassination would be especially eager to hire someone who had little commitment to this nation’s political institutions and who could disappear afterwards without a trace . . .” Id. at 129 (internal quotation marks omitted).

[Citizens v. Aliens]

Additionally, the Supreme Court has long held that Con­gress has the authority to make laws governing the con­duct of aliens that would be unconstitutional if made to apply to citizens. In Mathews v. Diaz, the appellees were lawful resident aliens challenging a federal law that limited eligibility to Medicare Part B to aliens who had been admitted for permanent residence and had also resided in the United States for at least five years. 426 U.S. 67, 96 S.Ct. 1883, 48 L.Ed.2d 478 (1976). The Supreme Court upheld both conditions as constitutional against a challenge under the Due Process Clause. The Court pointed out in its opinion that the crucial question was whether discrimination among different types of aliens was permissible, as contrasted with discrimination between aliens and citizens and held that “[n]either the overnight visitor, the unfriendly agent of a hostile foreign power, the resident diplomat, nor the illegal entrant, can advance even a colorable constitutional claim to a share in the bounty that a conscientious sovereign makes available to its own citizens and some of its guests.” Id. at 1891 (emphasis in original). The Court went on to say that
“[i]n the exercise of its broad power over naturalization and immigration, Congress regularly makes rules that would be unacceptable if applied to citizens.” Id.

[Lawful Aliens v. Unlawful Aliens]

The Court, in several cases striking down state laws restricting otherwise lawful activities in which aliens could engage, has emphasized that the rights thus protected were those of aliens who were lawful inhabitants of the states in question. In 1915, the Supreme Court held in Truax v. Raich that the complainant, a native of Austria admitted for residency in the United States, was entitled to equal protection under the 14th Amendment because he was “lawfully an inhabitant of Arizona.” 239 U.S. 33, 36 S.Ct. 7, 9, 60 L.Ed. 131 (1915). See also id. at 10 (states cannot “deny to lawful inhabitants . . . the ordinary means of earning a livelihood.”). See also Kwong Hai Chew v. Colding, 344 U.S. 590, 73 S.Ct. 472, 477 & n. 5, 97 L.Ed. 576 (1953); Torao Takahashi v. Fish and Game Comm’n, 334 U.S. 410, 68 S.Ct. 1138, 1142, 1143, 92 L.Ed. 1478 (1948). This court noted in Lynch v. Cannatella that “the Constitution does not forbid all differences in governmental treatment between citizens and aliens, or between aliens who have been legally admitted to the United States and those who are present illegally.” 810 F.2d 1363, 1373 (5th Cir.1987).

The Rest of the Story

Judge Dennis dissented and his opinion reads, in part, as follows:

[The People]

. . . I respectfully dissent from the majority’s dismissal of Portillo-Munoz’s Second Amendment claim. 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. See United States v. Verdugo-Urquidez, 494 U.S. 259, 271, 110 S.Ct. 1056, 108 L.Ed.2d 222 (1990) (“[A]liens receive constitutional protections when they have come within the territory of the United States and developed substantial connections with this country”); Martinez-Aguero v. Gonzalez, 459 F.3d 618, 625 (5th Cir.2006) (“[A]liens with substantial connections are those who are in this country ‘voluntarily and presumably [have] accepted some societal obligations’” (second alteration in original) (quoting Verdugo-Urquidez, 494 U.S. at 273, 110 S.Ct. 1056).

[Suggestion for Remand]

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.

My Thoughts

I find this case to be very thought provoking. I can appreciate the logic of both the Court’s opinion and the dissenting opinion. The question that I have is whether this case will move to the en banc Court or, possibly, to the Supreme Court. It is certainly one that we will want to watch.

Judge Dennis’ dissenting opinion is worth reading in its entirety. His analysis of Heller differs from that of Judge Garwood. Unfortunately, I only had space for the first two paragraphs of his dissent. Once again, we see a case in which good defense lawyers have looked beyond the obvious, raised issues of Constitutional dimension, and zealously represented their client. These cases are such a joy to read.


Buck Files, a charter member of TCDLA, practices in Tyler, Texas, with the law firm Bain, Files, Jarrett, Bain & Harrison, PC.

F. R. Buck Files, Jr.
F. R. Buck Files, Jr.
Buck Files is a charter member and former director of the Texas Criminal Defense Lawyers Association. He is a member of TDCLA’s Hall of Fame and a former President of the State Bar of Texas. In May, 2016, TDCLA’s Board of Directors named Buck as the author transcendent of the Texas Criminal Defense Lawyers Association. He practices in Tyler with the law firm of Files Harrison, P.C., and can be reached at or (903) 595-3573.

Buck Files is a charter member and former director of the Texas Criminal Defense Lawyers Association. He is a member of TDCLA’s Hall of Fame and a former President of the State Bar of Texas. In May, 2016, TDCLA’s Board of Directors named Buck as the author transcendent of the Texas Criminal Defense Lawyers Association. He practices in Tyler with the law firm of Files Harrison, P.C., and can be reached at or (903) 595-3573.

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