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.