Person vs. People

Over on Balkinization, I wrote a post raising questions about the Fifth Circuit’s decision earlier this week in United States v. Portillo-Munoz. which held that illegal immigrants are not part of “the people” protected by the Second Amendment.  More thought convinces me that this rationale is incorrect.

Here’s one problem.  The Supreme Court held in Pyler v. Doe that an illegal alien is a “person” for purposes of the Equal Protection Clause. If you say that “people” means something more than the plural of “person,” that creates an illogical distinction that turns on whether “person” or “people” is used in a textual provision, unless you try, as the Fifth Circuit did, to say that “the people” can mean different things in different parts of the text, which is hard to fathom and is not supported by any cases.

On the textual distinction, the word person is used in the Fifth Amendment with respect to grand jury indictment, double jeopardy, self-incrimination, takings, and due process. But the word people is used in the First Amendment, the Second Amendment, the Fourth Amendment, and the Ninth Amendment.

Now perhaps someone more clever than me can explain why an illegal immigrant should be compensated when the government takes his or her property but has no right to complain about an illegal search of the same property, but that does not make sense to me.

Here’s another problem.  The Second Amendment was incorporated through the Due Process Clause.  If an illegal alien raises a Second Amendment claim against a State, does the use of the word “person” in the Due Process Clause supersede the contrary plural language in the Second Amendment?  The same question arises for the First Amendment or the Fourth Amendment.

I could go on, but the point is that the reasoning of the panel majority is flawed and will create considerable confusion.  I hope that a petition to hear the case en banc is granted.

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4 Responses

  1. Howard Gilbert says:

    However, in the context where a well regulated militia is necessary to the security of a free state, doesn’t it seem reasonable to assume that “the people” in the second half of the amendment are the same people (the unregulated militia, citizens who have reached the age of military service) who may be called on to satisfy the first half of the amendment. Illegal aliens are not part of the unregulated militia, therefore they may not be among the people whose right to bear arms may not be infringed.

  2. Shag from Brookline says:

    Just imagine Barbra Streisand singing “People, who need persons, are … ” or “Persons, who need people, are …. “

  3. Matt says:

    doesn’t it seem reasonable to assume that “the people” in the second half of the amendment are the same people (the unregulated militia, citizens who have reached the age of military service) who may be called on to satisfy the first half of the amendment. Illegal aliens are not part of the unregulated militia

    I’m not sure if it goes directly to the point Howard Gilbert is trying to make or not, but undocumented immigrants in the U.S. can be drafted and are even required by law to register with the selective service in many cases, so given the ways the role of a “well regulated militia” has evolved w/ the development of a standing military, it is at least now no longer the case that undocumented immigrants are not among the group who might be “called on”.

  4. Ryan says:

    The Constitution is actually fairly deliberate in this regard. Where simply the plural of “person” is indicated, the term “persons” is used — e.g., art. I, § 2, cl. 3; art. I, § 7, cl. 2; art. II, § 1, cl. 3; amd. XII; amd. XIV). The term “people,” by contrast, is always preceded by the definite article “the” (i.e., “the people”) — see, the Preamble, art. I art. I, § 2, cl. 1; the amendments identified in the text of the post and amd XVII (the Fourth Amendment actually uses both terms, “the people” in describing who is entitled to the rights and “persons” in describing the contents of the warrant requirement). This strikes me as pretty persuasive evidence that “the people” was used in a term of art sense, which is consistent with how the Supreme Court has interpreted the term (e.g., U.S. v. Verdugo-Urquidez, 494 U.S. 259 (1990)).

    I agree that the incorporation issue presents some difficulties but keep in mind that Thomas’s P-or-I-based concurrence in McDonald leaves the incorporation of Second Amendment rights as applied to non-citizens an open question. Of course, the Fourth Amendment has been incorporated through the Due Process Clause, which raises the difficulty you identify, but I think this may be more of a problem with due-process incorporation than with the interpretation of “the people” as used in the Bill of Rights as not referring to every “person.”