Posts tagged the people

Who are “the People”?



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.


Floor Speech on Debt Ceiling July 19 2011

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If you truly want to listen to someone that knows what they are talking about, here it is Ron Paul…

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