Federal appeals court rules that illegal immigrants don't have 2nd amendment rights

[alp227]

David Drumm posted at JonathanTurley.org "Illegal Immigrants and the Bill of Rights":

Do illegal immigrants have a Second Amendment right to own guns? In the case of United States v. Portillo-Munoz, the U.S. Court of Appeals for the Fifth Circuit held that illegal immigrants are not part of the “people” protected by the Second Amendment and have no constitutional right to bear arms.

Defendant-appellant Armando Portillo-Munoz was arrested by a Dimmit, Texas police officer who found a .22 caliber handgun in the center console of a four-wheeler driven by Portillo. Portillo indicated to officers that the handgun was used to shoot coyotes at a ranch he worked at. Portillo admitted to being a native and citizen of Mexico and illegally present in the United States.

Portillo’s attorneys filed a motion to dismiss, alleging that conviction under under 18 U.S.C. § 922(g)(5), which makes it unlawful for an illegal alien to possess a firearm or ammunition, would violate the Second Amendment. The district court denied the motion to dismiss and Portillo entered a conditional guilty plea. The Fifth Circuit affirmed the district court’s denial of the motion to dismiss.

In its decision, the Fifth Circuit Court noted that in District of Columbia v. Heller, the individual was a United States citizen, so the question of whether an alien, legal or illegal, has a right to bear arms has not been addressed.

[Bold Lib]

1. The ruling does seem to make sense. A person illegally in this country

cannot vote either.

[izquierdista]

2. Or the 4th Amendment...

Makes sense not to have to worry about warrants and probable cause when you are digging through his person, papers, and effects so you can throw him out of the country.

[Bold Lib]

3. Just more reason to be sure to come across the border legally I guess.

I know I would never violate Mexico's border and go there illegally. Have you SEEN their laws on regarding illegal immigrants?! I mean WOW!!!

[gejohnston]

5. Yeah, then again there seems to be a big difference between

Mexicans that come here and Americans that go there illegally. They come here because of high unemployment and the need to take care of their families. Americans going there, not so much.

[Bold Lib]

7. And what do you say to those Guatemalans that make their way to Mexico for

a better life illegally? Have you seen the laws in Mexico regarding illegal immigrants?! I mean just WOW!!! Could you just hear the outcry should the U.S. adopt Mexico's laws in dealing with illegal immigrants?

[gejohnston]

12. good point. I was not aware that was an issue. IIRC

I remember reading that it is something like five years in prison.

[DissedByBush]

16. And a lot of restrictions even if you are legal

Mexico, which constantly complains about our immigration laws, is downright hostile to legal and illegal immigrants compared to our laws.

[izquierdista]

6. How did you know I was an illegal there for a while?

:evilgrin:

[Bold Lib]

9. Same way I knew you were Guatemalan.

[izquierdista]

10. On the contrary, Mexican racism worked to my advantage

This guero got treated a LOT better than the Guatemalans.

[Atypical Liberal]

18. Have you been to Mexico?

I have.

If I lived there I would smuggle myself to the United States in a barrel of shit for a better life.

I do not understand the ire against "illegal" Mexican immigrants.

When the housing boom was still going, I'd see them out every morning at sun-up and working until sun-down putting roofs on houses. These people have a work ethic that most Americans cannot even fathom. These people know what poverty is and know what busting your ass to make it in this world is all about.

These are the kinds of people we should be proud to have as American citizens.

[TPaine7]

4. Does this imply that they don't have freedom of religion and that they can be tortured? n/t

[petronius]

8. I don't like this ruling, for two reasons. On the one hand, we accept that there are

limits on the 2nd, just like all of the BoR. However, I think those limitations should in all cases be as narrow and empirically justified as possible. An undocumented person in the U.S. is just as entitled to self-protection, recreation, or basic tool ownership as anyone else, IMO.

More importantly, I don't like this quibbling over who is and who isn't part of "the people." As I see it, if a person is in the U.S., they're as subject to all the laws and all the protections as anyone else. The only strike against an undocumented migrant is the entry itself, and the remedy for that is deportation as appropriate. I see no need for other differentials in treatment...

[PavePusher]

11. By extension of your reasoning, they should be allowed to vote.

Ummm, I don't think so.

[gejohnston]

13. not necessarily

Voting is not in the Bill of Rights and who can vote is mostly up to the states. A state could lower the voting age to 15 if they wanted and their vote would still count. All persons standing on US soil for any reason are afforded due process, speech, religion etc. I am with Tpaine7 and petronius on this one.

[PavePusher]

14. My bad, I just looked up Amendment XV....

and it states "The right of citizens of the United States to vote...."

So, clearly citizenship is a prerequisite for that one.

[TheWraith]

15. I agree.

I have no problem with someone who's here illegally not being able to, say, pass an NICS check--hell, legally immigrated non-citizens can't pass one, as I recall. You have to be a US citizen. But I don't think that additional charges on someone here illegally just for possessing a firearm is acceptable, if there's no evidence they were doing anything else criminal. Anyone here in the US is entitled to basic rights, including self-defense. A lot of criminals specifically target people who are here illegally, because they know that those people can't/won't go to the police.

[one-eyed fat man]

17. ATF.gov to the rescue

http://www.atf.gov/firearms/faq/nonimmigrant-aliens.html#what-form

Immigrant aliens, that is those aliens legally in the country intendint to reside permanently and/or become citizens can pass a NICS check.

Non-resident aliens who are here legally may possess guns only under some narrowly defined conditions.

A few excerpts and examples from the ATF FAQ on the subject:

Q: I have a “green card” and have lived in Texas for several years. Am I prohibited from purchasing firearms and ammunition from an FFL in Texas?

As long as you are not otherwise prohibited from purchasing or possessing firearms and ammunition (for example, a felon), Federal law does not prohibit you from purchasing or possessing firearms or ammunition. However, you will need to put your alien number or admission number on the ATF Form 4473 (5300.9) and provide the FFL with documentation establishing you have resided in Texas for more than 90 consecutive days preceding the transaction. Moreover, you must make sure there are no State or local restrictions on such a purchase.

Q: I am a nonimmigrant alien. I purchased a firearm in Maine in early 1998 after providing the Federal firearms dealer with documentation showing I had resided in the State for more than 90 days. I was told that this transaction was legal then. Am I entitled to keep that firearm and any ammunition I have on hand? Is there a “grandfather” clause that would protect me from criminal liability?

Since October 21, 1998, when the Gun Control Act was amended to make nonimmigrant aliens a new category of prohibited persons, nonimmigrant aliens generally have not been able to possess firearms and ammunition in the United States. The law does not contain a “grandfather clause.” Therefore, unless you obtain a valid State hunting license or permit (or fall within one of the other exceptions), your possession of the firearm and ammunition is not legal.


Q: May nonimmigrant aliens legally in the United States purchase or possess firearms and ammunition while in the United States?

Nonimmigrant aliens generally are prohibited from possessing or receiving (purchasing) firearms and ammunition in the United States.

There are exceptions to this general prohibition. The exceptions are as follows:

nonimmigrant aliens who possess a valid (unexpired) hunting license or permit lawfully issued by a State in the United States;
nonimmigrant aliens entering the United States to participate in a competitive target shooting event or to display firearms at a sports or hunting trade show sponsored by a national, State, or local firearms trade organization devoted to the collection, competitive use or other sporting use of firearms;
certain diplomats, if the firearms are for official duties;
officials of foreign governments, if the firearms are for official duties, or distinguished foreign visitors so designated by the U.S. State Department;
foreign law enforcement officers of friendly foreign governments entering the United States on official law enforcement business; and
persons who have received a waiver from the prohibition from the U.S. Attorney General.

Significantly, even if a nonimmigrant alien falls within one of these exceptions, the nonimmigrant alien cannot purchase a firearm from a Federal firearms licensee (FFL) unless he or she (1) has an alien number or admission number from the Department of Homeland Security (formerly the Immigration and Naturalization Service) and (2) can provide the FFL with documentation showing that he or she has resided in a State within the United States for 90 consecutive days immediately prior to the firearms transaction.

Q: I am a nonimmigrant alien from Canada and am planning to reside in Florida for 6 months. Do I need an alien number or admission number if I plan to buy a gun after living in Florida for 90 days? If so, how do I get such a number?

All non-U.S. citizens need an alien number or admission number to purchase a firearm from a Federal firearms licensee (FFL). The FFL will not complete the sale if you do not have such a number. This is the case even if you have a State permit that ATF has determined qualifies as a “NICS alternative” and therefore do not need to have a National Instant Criminal Background Check System check. Most nonimmigrant aliens will automatically receive an admission number when they enter the United States. However, Canadians will not automatically receive this number and therefore should specifically ask for this number when they enter the United States. These numbers only can be issued at a port of entry, so it is important that you request the number when you enter the United States. Please note, most nonimmigrant aliens will not receive alien numbers.