Vol. 4 No. 2, Spring 2013; The Error in Finding that Undocumented Persons are Not “The People”: A Deeper Look at the Implications of United States v. Portillo-Munoz
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In 2011, the Fifth Circuit held in United States v. Portillo-Munoz that undocumented persons are not entitled to the protections of the Second Amendment to the Constitution. Although part of the court’s reasoning was based on 18 U.S.C. § 922(g)(5), its decision also turned on the belief that the meaning of the phrase “the people” in the Second Amendment did not incorporate undocumented persons. This Note argues that Portillo-Munoz’s interpretation of “the people,” as implying that “the people” exclusively encompasses only citizens, is erroneous with how the phrase “the people” is similarly situated in the Fourth Amendment. As set out in District of Colombia v. Heller, the two amendments have been tied together in purpose as asserting a basic right of persons against governmental intrusion. In the same vein, contrary to what United States v. Portillo-Munoz asserted, undocumented persons have been held to retain certain Fourth Amendment rights, thus, by implication, to be included in “the people” therein. Thus, in siding with the Portillo-Munoz dissent, this Note maintains that the Second Amendment’s reading of “the people” should extend to undocumented persons.