Illegal migrants do not have gun rights protected by 2nd Amendment: federal appeals court

Illegal migrants do not have the right to bear arms under the Second Amendment, a federal appeals court in New Orleans has ruled, rejecting arguments by a Mexican man who was convicted of illegally possessing a handgun and argued that the ban was unconstitutional.

A three-judge panel of the New Orleans-based 5th U.S. Circuit Court of Appeals ruled on Tuesday that federal prohibitions on illegal immigrants owning firearms was lawful, and Second Amendment rights do not apply to those who have entered the country illegally. 

The ruling came in an appeal by Jose Paz Medina-Cantu, who had been arrested by Border Patrol agents in Texas in 2022 and charged with illegally possessing a handgun and unlawfully re-entering the country after being previously deported.

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Medina-Cantu pleaded guilty and was sentenced last year to 15 months in prison, but he preserved the right to argue on appeal that the gun charge violated his right to keep and bear arms under the Second Amendment.

His lawyers based their argument on the 2022 landmark New York State Rifle and Pistol Association v. Bruen decision by the Supreme Court’s 6-3 conservative majority that established a new standard to determine whether a law violates the Second Amendment.

The Bruen ruling required gun regulations to be “consistent with this nation’s historical tradition of firearm regulation” and the three-judge panel said the Supreme Court’s recent rulings on gun rights “did not unequivocally abrogate our precedent that the plain text of the Second Amendment does not encompass illegal aliens.”

Since Bruen, a multitude of federal and state gun control measures have been challenged in courts with mixed results. Many laws have been declared invalid following that decision.

Medina-Cantu’s lawyers argued the ruling likewise undermined a 2011 decision by the 5th Circuit, in United States v. Portillo-Munoz, upholding the immigration-related ban as there was no historical tradition dating back to around when the Second Amendment was adopted in 1791 of disarming people based solely on their immigration status.

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Firearms displayed for sale on a shelf at the McBride Guns Inc. store on Aug. 25, 2023, in Austin, Texas. (Brandon Bell/Getty Images)

The three-judge panel said Portillo-Munoz “remains good law” and that the rights of U.S. citizens do not apply to illegal migrants.

“The Second Amendment protects the right of ‘the people’ to keep and bear arms. Our court has held that the term ‘the people’ under the Second Amendment does not include illegal aliens,” U.S. Circuit Judge James Ho, a conservative appointee of Republican President Trump, wrote in a concurring opinion.

“As to common sense, an illegal alien does not become ‘part of a national community’ by unlawfully entering it, any more than a thief becomes an owner of property by stealing it.”

Ho went on to clarify the precedent in the case. 

A group of migrants climb the wall to seek asylum in the United States in Tijuana, Mexico, on June 7, 2024. (Carlos Moreno/Anadolu via Getty Images)

“The Court has repeatedly explained that ‘an alien… does not become one of the people to whom these things are secured by our Constitution by an attempt to enter forbidden by law’… But that’s, of course, the very definition of an illegal alien – one who ‘attempts to enter’ our country in a manner ‘forbidden by law.’”

“So illegal aliens are not part of ‘the people’ entitled to the protections of the Second Amendment.’

Ho added that for an illegal alien to appeal to the Constitution is to concede that the United States is governed by that supreme law.

“And ‘the power to exclude [aliens from the United States] has been determined to exist’ under our Constitution. So, the Court concluded, ‘those who are excluded cannot assert the rights in general obtaining in a land to which they do not belong as citizens or otherwise,’” Ho wrote.