The Second Amendment as a “Protective Right” and the Scope of “The People” in the Second Amendment

June 13th, 2011

Eugene Volokh links to United States v. Portillo-Munoz, a 2-1 opinion filed today by the 5th Circuit. Judge Garwood found that the Second Amendment does not apply to an illegal alien because he is not part of “the people.” Garwood further distinguishes the Second Amendment from the Fourth Amendment in Verdugo-Urquidez, where the former is an “affirmative right” and the latter is a “protective right.”

Garwood narrowly reads Verdugo-Urquidez, which determined who the “people” are with respect to the Fourth Amendment. Judge Dennis in dissent has a good reply.

The sole basis for the majority’s conclusion that Portillo-Munoz should not be considered part of “the people” is that he is unlawfully present in the United States. However, this rationale is wholly unsupported by the applicable precedents.
As the majority acknowledges, Heller did not address the question of whether noncitizens, lawfully or unlawfully present in the United States, have Second Amendment rights. Importantly, in both Heller and Verdugo-Urquidez, a Fourth Amendment case, the Supreme Court indicated that “the people” includes people who have developed “sufficient connection” with the United States…. In Verdugo-Urquidez, the Supreme Court concluded that an alien who was brought to the United States against his will, for the sole purpose of subjecting him to a criminal prosecution, was not entitled to Fourth Amendment protections because he “had no voluntary connection with this country that might place him among ‘the people’ of the United States,” and thus that the warrantless search of his properties by United States government agents in Mexico did not violate the Fourth Amendment. Nothing in Verdugo-Urquidez requires that the alien must be lawfully present in the United States in order to establish substantial connections….

The main thrust of the majority opinion is the distinction between “affirmative right” and “protective right.” Here is how Garwood phrases it:

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.

This does not seem persuasive, and there is no precedent to support it. As Judge Dennis noted in dissent, Heller found that “that the Second Amendment, like the First and Fourth Amendments, codified a pre-existing right.” This is not an affirmative right. If anything, it prevents the Federal Government from disarming the people (to commenters, assume Heller is correct for the moment, because that is the precedent that binds the 5th Circuit at the moment). It is a right that “shall not be infringed.”

The Bill of Rights does not grant any “affirmative rights.” The Bill of Rights places limitations on the power of the Federal Government to limit the rights of the people. However you interpret the 9th Amendment, this much should be clear. In fact, most of the provisions in the Bill of Rights are phrased negatively: “Congress shall make no law” (1st Amendment), “shall not be infringed (2nd amendment),” “shall not be violated” (4th Amendment), “nor be deprived of . . .” (5th Amendment), “the right of trial by jury shall be preserved” (7th Amendment), etc.

This bifurcation of our rights, it seems, is an effort to prevent analogies between the Second and First/Fourth Amendment, and thus robust enforcement of Second Amendment rights.

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.

In my article, The Constitutionality of Social Cost, I aim to analogize the Second Amendment to the entirety of the bill of rights, something that the Heller and McDonald Courts, as well as a number of lower Courts seems to be comfortable doing.

Although some have suggested that courts should look to the First Amendment for interpretational guid‐ ance for the Second Amendment,18 I propose a more holistic approach: look to the entire Bill of Rights. Liberty interests cer‐ tainly vary by type, but the Court’s precedents balancing those interests against society’s need for safety and security coalesce into different schools. By reconceptualizing the right to keep and bear arms through the lens of social cost, in light of over a century of Supreme Court jurisprudence, one can see that de‐ spite its dangerous potential, the Second Amendment is not so different from all other rights; accordingly, it should not be treated differently.

Cases like this aim to relegate the Second Amendment to a second-class right; something Heller’s dicta explicitly permitted. I will blog more in the future about how I view this issue differently.

I would not be surprised if this case goes en banc.

Cross-Posted at