By Jonathan Ellett
FAIR
Late August, the Fifth Circuit affirmed that illegal aliens are not guaranteed a Second Amendment right to possess firearms. In reaching its decision, the Fifth Circuit relied on its 2011 ruling that illegal aliens are not “members of the political community” entitled to Second Amendment rights.
The current case arose when federal prosecutors charged Jose Paz Medina-Cantu, an illegal alien who had been deported multiple times, with illegal re-entry and illegal possession of a firearm and ammunition. Prosecutors based the illegal possession charge on 18 U.S.C. §922(g)(5)(A), which prohibits illegal aliens from owning or possessing firearms.
In district court, Medina-Cantu requested a dismissal of the charges on the grounds that Section §922(g)(5) is unconstitutional. Specifically, Medina-Cantu argued that Section 922(g)(5) violates the Second Amendment of the U.S. Constitution, which 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.” In short, Mandu-Cantu claimed that even though he is an illegal alien, he has a Second Amendment right to bear arms and that Section 922(g)(5)(A) unconstitutionally interferes with that right.
District Court Judge Gonzales Ramos rejected the defendant’s request based on the precedent set in Portillo-Munoz. In that 2011 case, the Fifth Circuit upheld the constitutionality of Section 922(g)(5)(A) by reasoning that the phrase ‘the people’ in the Second Amendment does not include aliens illegally in the United States. Medina-Cantu ultimately pled guilty, but preserved the issue for appeal.
On appeal, Medina-Cantu argued that the District Court’s reliance on Portillo-Munoz conflicted with the U.S. Supreme Court’s subsequent decisions in New York State Rifle and Pistol Association v. Bruen (2022) and United States v. Rahimi (2024). In particular, Medina-Cantu claimed that on the basis of Bruen, the government did not perform the required historical analysis to uphold the constitutionality of Section 922(g)(5).
The government, on the other hand, argued that even the Supreme Court’s decision in Bruen does not negate the precedent set in Portillo-Munoz. The government reasoned that the plain text of the Second Amendment does not extend to illegal aliens and that Section §922(g)(5) is consistent with the historical tradition of gun regulation. Additionally, the government maintained that Rahimi is not relevant as it did not involve constitutional rights.
Ultimately the Fifth Circuit rejected the defendant’s claim that Section 922(g)(5)(A) is unconstitutional. Instead, the Fifth Circuit agreed with the government’s argument, based on Portillo-Munoz, that “the people” referred to in the Second Amendment does not include illegal aliens. It also found that the U.S. Supreme Court decisions in Bruen and Rahimi provided little guidance as to who is actually protected by the Second Amendment. And, since neither case authoritatively resolved whether illegal aliens are protected by the Second Amendment, the Fifth Circuit Court said that the District Court judge’s reliance on Portillo-Munoz was justified and that the case remains good law.
Notably, the Fifth Circuit’s ruling lies in direct conflict with a ruling handed down earlier this year by the Seventh Circuit. There, District Court Judge Sharon Johnson Coleman from the Northern District of Illinois held that Section 922(g)(5)(A) does indeed violate the Second Amendment. Judge Johnson concluded that the Supreme Court’s decision in Bruen should apply in the context of an illegal alien charged with illegal possession of a gun under Section 922(g)(5). After conducting a historical analysis, Judge Johnson found that the “non-violent circumstances” of the illegal alien’s arrest do not support a finding that he poses a risk to public safety such that he cannot be trusted to use a weapon … and should be deprived of his Second Amendment right to bear arms.” Thus, Judge Johnson held that 18 U.S.C. § 922(g)(5) is unconstitutional.
This split between the Fifth and Seventh Circuit increases the possibility that the U.S. Supreme Court could accept another appeal and ultimately decide whether the Second Amendment guarantees illegal aliens the right to bear arms. The impact of an affirmative decision would be hard to understate, especially in terms of public safety and national security. Illegal aliens are, by definition, essentially unvetted aliens residing in our communities. They have already violated our immigration laws, and many violate other laws by stealing identities, working illegally, and failing to pay taxes. It is certainly reasonable to argue that they have not been invited to be part of our “political community” and thus should not be given the same rights as citizens. Indeed, taken to its logical conclusion, giving illegal aliens Second Amendment rights would mean that a soldier from an invading army could not be denied the ability to purchase a gun on our soil.
But even before the Supreme Court wades into the issue (if it does), the circuit split may impact states considering legislation to allow illegal aliens to serve as law enforcement officers – which naturally requires them to possess firearms. Already, California, Colorado, and Illinois have enacted laws allowing illegal aliens, most notably DACA beneficiaries and asylum applicants, to become law enforcement officers. Other states such as Virginia and Wisconsin have rejected such bills. The Fifth Circuit’s decision, in particular, may discourage some states from moving forward with this effort.
