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

Eugene Volokh links to United States v. Portillo-Munoz, a 2-1 opinion filed today by the 5th Circuit. Judge Garwood found that the SecondAmendment 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.”

More analysis after the jump.

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 SecondAmendment, 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 forinterpretational 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

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6 Responses

  1. Patrick J. Charles says:


    I don’t see this opinion as relegating the Heller right to armed self defense in the home as a “second-class” right in the least bit. One can interpret an “affirmative right” one of two ways, depending on you look at it. While I would not classify the Second Amendment as a “protective right,” the thrust of the holding was that undocumented or illegal aliens are not afforded Second Amendment rights.

    This holding is consistent with framing-era practice in that arms bearing was limited to those whom had allegiance to the nation. How one can claim an undocumented or illegal alien has allegiance to the nation, temporary or perpetual, is beyond me. One must submit to a nation’s laws completely to be afforded full constitutional protections. As Vattel’s treatise makes clear, which the founding generation borrowed from, the law of nations stipulates that all aliens are afforded life, personal property, and some due process rights. All other rights can be mitigated or limited dependent upon the will of the sovereign nation. I would say the court’s holding is consistent with Vattel.

    Let us not forget, there is a robust historical pedigree on limiting arms bearing to citizens only. Whether requiring more from aliens, undocumented or lawful, access to firearms is a prudent public policy is another matter for debate. However, this does not deter from the lawfulness or constitutionality of such laws.

  2. Josh Blackman says:

    If the court had written something along the lines you did–that in the framing era the right to keep and bear arms was limited to those who had allegiance to the nation, I would not have much of an objection. That analysis would have been consistent with Heller’s methodology, and consistent with its holding. The court did not do that.

    In other to get around a precedent that is clearly in tension, Verdugo-Urquidez, the court fashioned a distinction that is not grounded in history, and conflicts with Heller’s holding that the 2nd Amendment is a “pre-existing,” not an affirmative (whatever that is) right.

  3. Josh Blackman says:

    To elaborate on my previous comment, I think the court made the move it did–by distinguishing protecting and affirmative rights–in order to set back the tide of comparisons with the First and Fourth Amendment. This has not sit well with a number of judges who rejected this analogy. This panel, it seems, was trying to think of a way to pare back and weaken this analogy. Protective/Affirmative rights isn’t going to cut it. The better argument sounds in the Heller and McDonald dissents–that this right is dangerous, unlike any other rights. I don’t buy this argument either. In my article, I address at some length why this right is not different than all other rights.

    Going forward, I think we will see many other Judges fashion more persausive tests why the Second Amendment should not be treated equally to other rights.

  4. Gerard Magliocca says:

    On a different note, given that Pyler v. Doe holds that illegal aliens are “persons” for purposes of the Equal Protection Clause, does it make sense that they are not part of the “people” for purposes of the Second Amendment? (I haven’t had a chance to read the opinion yet.)

  5. Josh Blackman says:

    Very good point. I’m pretty sure this is going en banc, if nothing else to clarify how it may affect other provisions of the Constitution as applied to undocumented persons.

  6. Patrick J. Charles says:


    Great question! You are correct that issues affecting “life, liberty, and property” are issues that affect all persons. In this regard, the Fourteenth Amendment is consistent with international law treatises circa 1791 and 1868 (the two most important dates to consider). Perhaps this is the major problem with Second Amendment incorporation through the Due Process Clause.

    Certainly, the Second Amendment must have fell under “life” and “liberty” for the four justices that incorporated the Second Amendment through the Due Process Clause. Taking this is true, it seems to make common legal sense that armed self-defense in the home with a handgun would apply to all, right? It is most certainly a contradiction in jurisprudence for illegal aliens to fall under the Fourteenth Amendment in Plyer v. Doe, yet not fall in the constraints of the Second Amendment.

    Despite this fact, I think the Supreme Court will somehow differentiate the Second Amendment’s affirmative and preexisting right to bear arms with the holding in Plyer. The historical pedigree of limiting arms bearing to members of the political community and the doctrine of allegiance is too robust for any court to ignore. At least that is my two-cents.