                  REVISED JUNE 29, 2011
        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                 Fifth Circuit

                                                                 FILED
                                                                 June 13, 2011
                                 No. 11-10086                   Lyle W. Cayce
                                                                     Clerk

UNITED STATES OF AMERICA

                                           Plaintiff-Appellee
v.

ARMANDO PORTILLO-MUNOZ

                                           Defendant-Appellant



                Appeal from the United States District Court
                     for the Northern District of Texas



Before GARWOOD, GARZA, and DENNIS, Circuit Judges.
GARWOOD, Circuit Judge:
                  FACTS AND PROCEEDINGS BELOW
      On July 10, 2010, the Castro County, Texas, Sheriff’s department was
notified that a person at the Rodeo Arena in Dimmit, Texas, was “spinning
around” on a red motorcycle with a gun in his waistband. A Dimmit Police
Officer arrived at the scene and found a .22 caliber handgun in the center
console of a four-wheeler driven by defendant-appellant Armando Portillo-
Munoz. Portillo indicated to the officers present that the gun was for killing
coyotes. After searching his person, officers found a dollar bill in Portillo’s
pocket with a white powder substance inside the folds. Portillo was arrested and
                                  No. 11-10086

booked in the Castro County jail for unlawfully carrying a weapon and for
possession of a controlled substance. He admitted to being a native and citizen
of Mexico illegally present in the United States.        According to Portillo’s
Presentence Report (PSR), he first came to the United States in 2005 but left
after six months. Portillo illegally reentered the United States in 2009 and had
been present for one year and six months before this incident. At the time of his
arrest, he was working as a ranch hand in Dimmit. He stated that he obtained
the firearm to protect the chickens at the ranch from coyotes. He had been
employed there since January 2010, prior to which he had worked at a dairy
farm in Hereford, Texas. His PSR did not report any prior criminal history,
arrests, or previous encounters with immigration officials.
      Portillo was indicted on August 31, 2010 for one count of Alien, illegally
and unlawfully present in the United States, in Possession of a Firearm under
18 U.S.C. § 922(g)(5). His attorneys filed a motion to dismiss, alleging that
conviction under the statute would violate the Second Amendment and the Due
Process Clause of the Fifth Amendment. The district court denied Portillo’s
motion to dismiss. Portillo then entered a conditional guilty plea on January 12,
2011. He admitted that he is a citizen and native of Mexico illegally present in
the United States and that he knowingly possessed a firearm in or affecting
commerce which had been shipped or transported in interstate commerce. The
district court sentenced him to ten months imprisonment followed by three years
of supervised release. Portillo filed a timely notice of appeal.
                                 DISCUSSION
                                        I.
                             Second Amendment
      Portillo raises two arguments on appeal: that his conviction under 18

                                        2
                                     No. 11-10086

U.S.C. § 922(g)(5) for being an illegal alien in possession of a firearm violates the
Second Amendment and that his conviction violates the Fifth Amendment’s Due
Process Clause. We address the Second Amendment argument first.
      We review de novo the constitutionality of federal statutes. United States
v. Anderson, 559 F.3d 348, 352 (5th Cir. 2009). Portillo clearly reserved the right
to appeal the denial of his motion to dismiss on Second Amendment grounds in
his conditional guilty plea.
      Under the laws of the United States, “[i]t shall be unlawful for any person
. . . who, being an alien . . . illegally or unlawfully in the United States . . . to ship
or transport in interstate or foreign commerce, or possess in or affecting
commerce, any firearm or ammunition; or to receive any firearm or ammunition
which has been shipped or transported in interstate or foreign commerce.” 18
U.S.C. § 922(g)(5). There is no question that Portillo’s conduct violated this
statute. We are only asked to decide if Portillo’s conviction under this statute
violates the United States Constitution. Whether the protections contained in
the Second Amendment extend to aliens illegally present in this country is a
matter of first impression in this circuit. Several district courts have previously
considered the constitutionality of this statute, but none of our sister circuits
have done so.
      The text of the Second Amendment reads: “A well regulated Militia, being
necessary to the security of a free State, the right of the people to keep and bear
Arms, shall not be infringed.” U.S. const. amend. II. In 2008, the Supreme
Court held in District of Columbia v. Heller that the Second Amendment
guarantees an individual right to possess and carry weapons. 128 S.Ct. 2783
(2008). The individual laying claim to the Second Amendment’s protections in


                                            3
                                     No. 11-10086

Heller was a United States citizen, so the question of whether an alien, illegal
or legal, has a right to bear arms was not presented, and the Court took care to
note that it was not purporting to “clarify the entire field” of the Second
Amendment. Id. at 2821. However, the Court’s language does provide some
guidance as to the meaning of the term “the people” as it is used in the Second
Amendment. The Court held the Second Amendment “surely elevates above all
other interests the right of law-abiding, responsible citizens to use arms in
defense of hearth and home.” Id. Furthermore, the Court noted that “in all six
other provisions of the Constitution that mention ‘the people,’ the term
unambiguously refers to all members of the political community, not an
unspecified subset” before going on to say that “[w]e start therefore with a strong
presumption that the Second Amendment right is exercised individually and
belongs to all Americans.”       Id. at 2790-91. The Court’s language in Heller
invalidates Portillo’s attempt to extend the protections of the Second
Amendment to illegal aliens.1 Illegal aliens are not “law-abiding, responsible
citizens” or “members of the political community,” and aliens who enter or
remain in this country illegally and without authorization are not Americans as
that word is commonly understood.
      Prior to its decision in Heller, the Supreme Court interpreted the meaning
of the phrase “the people” in the context of the Fourth Amendment and indicated
that the same analysis would extend to the text of the Second Amendment. In
United States v. Verdugo-Urquidez, the Court held that its analysis of the
Constitution “suggests that ‘the people’ protected by the Fourth Amendment,


      1
       And, nothing in McDonald v. City of Chicago, 130 S.Ct. 3020 (2010), suggests
otherwise.

                                            4
                                       No. 11-10086

and by the First and Second Amendments, . . . refers to a class of persons who
are part of a national community or who have otherwise developed sufficient
connection with this country to be considered part of that community.” 110 S.Ct.
1056, 1061 (1990). Portillo relies on Verdugo-Urquidez and argues that he has
sufficient connections with the United States to be included in this definition of
“the people,” but neither this court nor the Supreme Court has held that the
Fourth Amendment extends to a native and citizen of another nation who
entered and remained in the United States illegally.2
       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.
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. The Second Circuit laid out compelling
reasons for why an illegal alien could not claim that a predecessor statute to

       2
        Portillo cites to this court’s decision in Martinez-Aguero v. Gonzalez as holding that
a non-citizen illegally present in the United States was protected by the Fourth
Amendment. 459 F.3d 618 (5th Cir. 2006). The alien in that case, Martinez-Aguero, was a
Mexican national who visited the United States on a monthly basis using a visitor’s visa.
Prior to the incident at issue in the case, during which she was subjected to excessive force
by a border-patrol agent, Martinez-Aguero had applied for an updated visa and was
incorrectly told by United States immigration officials that she could use her old card in the
interim period. The court did not implicitly or explicitly hold that illegal aliens as a class
are covered by the Fourth Amendment, and the facts of the case are so very dissimilar from
those in Portillo’s case that we do not find the court’s decision especially persuasive here.

                                              5
                                  No. 11-10086

section 922(g)(5) violated the Fifth Amendment right to equal protection by
saying that “illegal aliens are those who . . . are likely to maintain no permanent
address in this country, elude detection through an assumed identity, and –
already living outside the law – resort to illegal activities to maintain a
livelihood.” United States v. Toner, 728 F.2d 115, 128-29 (2d Cir. 1984). The
court went on to approvingly quote the district court’s statement that “one
seeking to arrange an assassination would be especially eager to hire someone
who had little commitment to this nation’s political institutions and who could
disappear afterwards without a trace . . .” Id. at 129 (internal quotation marks
omitted).
      Additionally, the Supreme Court has long held that Congress has the
authority to make laws governing the conduct of aliens that would be
unconstitutional if made to apply to citizens. In Matthews v. Diaz, the appellees
were lawful resident aliens challenging a federal law that limited eligibility to
Medicare Part B to aliens who had been admitted for permanent residence and
had also resided in the United States for at least five years. 96 S.Ct. 1883
(1976). The Supreme Court upheld both conditions as constitutional against a
challenge under the Due Process Clause. The Court pointed out in its opinion
that the crucial question was whether discrimination among different types of
aliens was permissible, as contrasted with discrimination between aliens and
citizens and held that “[n]either the overnight visitor, the unfriendly agent of a
hostile foreign power, the resident diplomat, nor the illegal entrant, can advance
even a colorable constitutional claim to a share in the bounty that a
conscientious sovereign makes available to its own citizens and some of its
guests.” Id. at 1891 (emphasis in original). The Court went on to say that “[i]n


                                        6
                                 No. 11-10086

the exercise of its broad power over naturalization and immigration, Congress
regularly makes rules that would be unacceptable if applied to citizens.” Id.
      The Court, in several cases striking down state laws restricting otherwise
lawful activities in which aliens could engage, has emphasized that the rights
thus protected were those of aliens who were lawful inhabitants of the states in
question.   In 1915, the Supreme Court held in Truax v. Raich that the
complainant, a native of Austria admitted for residency in the United States,
was entitled to equal protection under the 14th Amendment because he was
“lawfully an inhabitant of Arizona.” 36 S.Ct. 7, 9 (1915). See also id. at 10
(states cannot “deny to lawful inhabitants . . . the ordinary means of earning a
livelihood.”). See also Kwong Hai Chew v. Colding, 73 S.Ct. 472, 477 & n.5
(1953); Torao Takahashi v. Fish and Game Comm’n, 68 S.Ct. 1138, 1142, 1143
(1948). This court noted in Lynch v. Cannatella that “the Constitution does not
forbid all differences in governmental treatment between citizens and aliens, or
between aliens who have been legally admitted to the United States and those
who are present illegally.” 810 F.2d 1363, 1373 (5th Cir. 1987).
      The courts have made clear that the Constitution does not prohibit
Congress from making laws that distinguish between citizens and aliens and
between lawful and illegal aliens.     We find that analysis persuasive in
interpreting the text of the Second Amendment. Whatever else the term means
or includes, the phrase “the people” in the Second Amendment of the
Constitution does not include aliens illegally in the United States such as
Portillo, and we hold that section 922(g)(5) is constitutional under the Second




                                       7
                                       No. 11-10086

Amendment.3
                                             II.
                                Due Process Violation
       Portillo argues that 18 U.S.C. § 922(g)(5) violates his Fifth Amendment
due process rights, both on its face and as applied. We hold that Portillo waived
the right to challenge the constitutionality of the statute on Fifth Amendment
grounds. Portillo’s conditional guilty plea explicitly says that Portillo is entitled
to appeal the denial of his motion to dismiss “only as it relates to whether the
statute in question 18 U.S.C. § 922(g)(5), violates the defendant’s Second
Amendment right to keep and bear arms and to self-defense.” At Portillo’s
rearraignment hearing, the court again said that Portillo was reserving his right
to appeal the order denying his motion to dismiss “as it relates to the statute in
question, that is, 18 U.S.C. § 922(g)(5), in which you contend that the statute
violates your Second Amendment right to keep and bear arms and to self
defense.” We hold that the text of the conditional guilty plea only reserves
Portillo’s right to appeal on the grounds that the statute violates the Second
Amendment, thus we do not reach the merits of whether Portillo’s due process
rights were violated.4

       3
        This case does not involve, and we do not speak to, the constitutional trial, personal
bodily integrity, privacy or speech rights of illegal aliens; we speak only to whether the
Second Amendment precludes Congress from limiting the actual, affirmative conduct of
aliens while they are illegally present within this country. This is a pure question of law
which the district court has correctly answered.
       4
         If we were to reach the merits of Portillo’s due process claim, we would find his
arguments wholly unconvincing. The statute in question is a federal law, not a state law,
and thus the Bill of Rights applies directly to the statute without need for incorporation.
Since the Second Amendment explicitly provides for a constitutional right to bear arms,
Portillo cannot look to the due process clause as an additional source of protection for a
right to keep and bear arms. See Graham v. Connor, 109 S.Ct. 1865, 1871 (1989).

                                              8
                                No. 11-10086

                                CONCLUSION
      For the foregoing reasons, we AFFIRM the district court’s denial of
Portillo’s motion to dismiss.
                                 AFFIRMED




                                     9
                                       No. 11-10086


DENNIS, Circuit Judge, concurring in part and dissenting in part:

       I concur in the majority’s dismissal of the Fifth Amendment claim in
this case, because I agree that the defendant, Armando Portillo-Munoz,
waived his right to argue that 18 U.S.C. § 922(g)(5) violates his Fifth
Amendment due process rights.
       However, I respectfully dissent from the majority’s dismissal of Portillo-
Munoz’s Second Amendment claim. The majority concludes that Portillo-
Munoz, a ranch hand who has lived and worked in the United States for more
than 18 months, paid rent, and helped supported a family — but who
committed the misdemeanor of illegally crossing the border — is not part of
“the people.” Supreme Court and Fifth Circuit precedent recognize that the
phrase “the people” has the same meaning in the First,1 Second,2 and Fourth3
Amendments. The majority’s determination that Portillo-Munoz is not part of
“the people” effectively means that millions of similarly situated residents of
the United States are “non-persons” who have no rights to be free from
unjustified searches of their homes and bodies and other abuses, nor to

       1
        The First Amendment states: “Congress shall make no law respecting an
establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom
of speech, or of the press; or the right of the people peaceably to assemble, and to petition
the Government for a redress of grievances.” U.S. Const. amend. I (emphasis added).
       2
        The Second Amendment states: “A well regulated Militia, being necessary to the
security of a free State, the right of the people to keep and bear Arms, shall not be
infringed.” U.S. Const. amend. II (emphasis added).
       3
        The Fourth Amendment states: “The right of the people to be secure in their
persons, houses, papers, and effects, against unreasonable searches and seizures, shall not
be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or
affirmation, and particularly describing the place to be searched, and the persons or things
to be seized.” U.S. Const. amend. IV (emphasis added).

                                             10
                                      No. 11-10086

peaceably assemble or petition the government. In my view, Portillo-Munoz
clearly satisfies the criteria given by the Supreme Court and our court for
determining whether he is part of “the people”: he has come to the United
States voluntarily and accepted some societal obligations. See United States
v. Verdugo-Urquidez, 494 U.S. 259, 271 (1990) (“[A]liens receive
constitutional protections when they have come within the territory of the
United States and developed substantial connections with this country”);
Martinez-Aguero v. Gonzalez, 459 F.3d 618, 625 (5th Cir. 2006) (“[A]liens with
substantial connections are those who are in this country ‘voluntarily and
presumably [have] accepted some societal obligations.’” (second alteration in
original) (quoting Verdugo-Urquidez, 494 U.S. at 273).
       Of course, whether 18 U.S.C. § 922(g)(5) violates the Second
Amendment is a separate question from whether Portillo-Munoz is part of
“the people” who have First, Second, and Fourth Amendment rights. I would
remand for the district court to consider in the first instance the applicable
level of scrutiny under the Second Amendment, and whether the provision
passes muster under that level of scrutiny.4


       4
        Since District of Columbia v. Heller, 554 U.S. 570 (2008), courts of appeal have
taken various approaches to scrutinizing laws regarding firearms. See, e.g., Nordyke v.
King, No. 07-15763, 2011 WL 1632063, at *5 (9th Cir. May 2, 2011) (applying a
“substantial burden” test to determine whether to apply heightened scrutiny to county
ordinance); United States v. Chester, 628 F.3d 673, 682-83 (4th Cir. 2010) (applying
intermediate scrutiny to review of § 922(g)(9)); United States v. Reese, 627 F.3d 792, 801-02
(10th Cir. 2010) (applying intermediate scrutiny to review of § 922(g)(8)); United States v.
Williams, 616 F.3d 685, 692-94 (7th Cir. 2010) (applying intermediate scrutiny to review of
§ 922(g)(1)); United States v. Skoien, 614 F.3d 638, 641-42 (7th Cir. 2010) (en banc)
(declining to label the level of scrutiny being applied, but upholding § 922(g)(9) because
“logic and data establish a substantial relation between” the subsection and an “important
governmental objective”); United States v. Marzzarella, 614 F.3d 85, 96-98 (3d Cir. 2010)
(applying a sliding scale test to determine the appropriate level of scrutiny for evaluating
§ 922(k)).

                                             11
                                No. 11-10086

                                      A.
      The majority’s interpretation of the “the people” has far-reaching
consequences: as the Supreme Court recognized in District of Columbia v.
Heller, 554 U.S. 570 (2008), and Verdugo-Urquidez, the same set of “people”
protected by the Second Amendment are also protected by the First and
Fourth Amendments. See Heller, 554 U.S. at 580 (explaining that “‘the
people’ seems to have been a term of art employed in select parts of the
Constitution,” and that the phrase refers to those who are “protected by the
Fourth Amendment, and by the First and Second Amendments.” (quoting
Verdugo-Urquidez, 494 U.S. at 265) (quotation marks omitted)). Indeed, the
author of today’s majority opinion recognized as much in United States v.
Emerson, 270 F.3d 203 (5th Cir. 2001). In Emerson, this court concluded, as
the Supreme Court would, several years later in Heller, that the Second
Amendment confers an individual rather than collective or quasi-collective
right to bear arms. 270 F.3d at 260. One of the rationales the Emerson court
gave for adopting the “individual rights model” was that “[i]t gives the same
meaning to the words ‘the people’ as used in the Second Amendment phrase
‘the right of the people’ as when used in the exact same phrase in the
contemporaneously submitted and ratified First and Fourth Amendments.”
Id. at 227. The court further explained:
      There is no evidence in the text of the Second Amendment, or any
      other part of the Constitution, that the words “the people” have a
      different connotation within the Second Amendment than when
      employed elsewhere in the Constitution. In fact, the text of the
      Constitution, as a whole, strongly suggests that the words “the
      people” have precisely the same meaning within the Second
      Amendment as without.
Id. at 227-28.

                                      12
                                 No. 11-10086

      In view of these precedents, I find the majority’s attempt, in dicta, to
limit its reasoning to the Second Amendment context to be unconvincing. The
majority labels the Second Amendment an “affirmative right” and the Fourth
Amendment a “protective right.” Maj. Op. 5. This distinction, unfortunately,
is unpersuasive. The majority’s characterization of the Second Amendment
as an affirmative right is contradicted by Heller: “[I]t has always been widely
understood that the Second Amendment, like the First and Fourth
Amendments, codified a pre-existing right. The very text of the Second
Amendment implicitly recognizes the pre-existence of the right and declares
only that it ‘shall not be infringed.’” 554 U.S. at 592. Both the Second and
Fourth Amendments plainly refer to the right of “the people” to be free from
unwarranted governmental intrusion — whether in the form of unreasonable
searches or seizures, or in the form of infringements on the right to bear
arms. See U.S. Const. amend. II (stating that “the right of the people to keep
and bear Arms shall not be infringed” (emphasis added)); U.S. Const. amend.
IV (“The right of the people to be secure in their persons, houses, papers, and
effects, against unreasonable searches and seizures, shall not be violated, and
no Warrants shall issue, but upon probable cause . . . .” (emphasis added)).
Moreover, the majority’s reasoning implicates not only the Fourth
Amendment, but also the First Amendment, which similarly prohibits
Congress from “abridging . . . the right of the people peaceably to assemble,
and to petition the Government for a redress of grievances.” U.S. Const.
amend. I (emphasis added).
      There are countless persons throughout Texas, Louisiana, and
Mississippi, who, like Portillo-Munoz, work for employers, pay rent to
landlords, and support their loved ones, but are unlawfully residing in the


                                       13
                                       No. 11-10086

United States. The majority’s reasoning renders them vulnerable — to
governmental intrusions on their homes and persons, as well as interference
with their rights to assemble and petition the government for redress of
grievances — with no recourse.
       The majority’s categorical conclusion that persons like Portillo-Munoz
are not part of “the people” is also incongruous with the holding of the
Supreme Court in Plyler v. Doe, 457 U.S. 202 (1982): “Whatever his status
under the immigration laws, an alien is surely a ‘person’ in any ordinary
sense of that term. Aliens, even aliens whose presence in this country is
unlawful, have long been recognized as ‘persons’ guaranteed due process of
law by the Fifth and Fourteenth Amendments.” Id. at 210 (citing cases). It
would be strange for the same founders who contemporaneously adopted the
First, Second, Fourth, and Fifth5 Amendments to have intended for the Fifth
Amendment to cover a different class of persons than the other three
amendments, considering that “people” is merely the plural of “person.”
                                              B.
       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 andVerdugo-
Urquidez, a Fourth Amendment case, the Supreme Court indicated that “the

       5
          The Fifth Amendment states in relevant part: “No person shall . . . be deprived of
life, liberty, or property, without due process of law.” U.S. Const. amend. V.

                                             14
                                       No. 11-10086

people” includes people who have developed “sufficient connection” with the
United States. The Heller Court, reiterating the analysis given in Verdugo-
Urquidez, explained:
       “[T]he people” seems to have been a term of art employed in select
       parts of the Constitution. . . . [Its uses] sugges[t] that “the people”
       protected by the Fourth Amendment, and by the First and Second
       Amendments, and to whom rights and powers are reserved in the
       Ninth and Tenth Amendments, refers to a class of persons who
       are part of a national community or who have otherwise developed
       sufficient connection with this country to be considered part of that
       community.
Heller, 554 U.S. at 580 (alterations in original) (emphasis added) (quoting
Verdugo-Urquidez, 494 U.S. at 265) (quotation marks omitted); see also
Verdugo-Urquidez, 494 U.S. at 271 (“[A]liens receive constitutional
protections when they have come within the territory of the United States
and developed substantial connections with this country”). In Verdugo-
Urquidez, the Court reasoned that an alien establishes substantial
connections with this country when she or he (1) is voluntarily present in the
United States and (2) “accept[s] some societal obligations.” 494 U.S. at 273;
see also Martinez-Aguero, 459 F.3d at 625 (“[A]liens with substantial
connections are those who are in this country ‘voluntarily and presumably
[have] accepted some societal obligations.’” (second alteration in original)
(quoting Verdugo-Urquidez, 494 U.S. at 273).6

       6
       Although he joined and provided the fifth vote for the majority opinion in Verdugo-
Urquidez, Justice Kennedy also appeared to depart from its reasoning regarding the
substantial connections test, explaining:
       I cannot place any weight on the reference to “the people” in the Fourth
       Amendment as a source of restricting its protections. With respect, I submit
       these words do not detract from its force or its reach. Given the history of our
       Nation’s concern over warrantless and unreasonable searches, explicit

                                             15
                                      No. 11-10086

       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. 494
U.S. at 273. Nothing in Verdugo-Urquidez requires that the alien must be
lawfully present in the United States in order to establish substantial
connections. In fact, the Court expressly assumed for the sake of argument
that aliens who are unlawfully present in the United States are protected by
the Fourth Amendment. Id. (declining to decide the issue because “such a
claim [was not] squarely before us,” but explaining that “assuming that
[illegal] aliens would be entitled to Fourth Amendment protections,” such
aliens would be different from the alien in Verdugo-Urquidez, provided that
they “were in the United States voluntarily and presumably had accepted
some societal obligations”). The Court also suggested that if the alien’s


       recognition of “the right of the people” to Fourth Amendment protection may
       be interpreted to underscore the importance of the right, rather than to
       restrict the category of persons who may assert it.
494 U.S. at 276 (Kennedy, J., concurring). Rather, “Justice Kennedy appeared to indicate
that the key factor in his decision was the extraterritorial application of the Fourth
Amendment: ‘If the search had occurred in a residence within the United States, I have
little doubt that the full protections of the Fourth Amendment would apply.’” Martinez-
Aguero, 459 F.3d at 624 (quoting Verdugo-Urquidez, 494 U.S. at 278). Our court, in
Martinez-Aguero, declined to decide whether the substantial connections test was
controlling, because it determined that the alien satisfied the test, which was “more
demanding” than any other potentially applicable test. Id. at 625. Likewise, in this case,
for the reasons given below, Portillo-Munoz has also shown that he has substantial
connections with this country.

                                            16
                                  No. 11-10086

presence in the country, even if involuntary, had been “prolonged” for more
than “a matter of days” when the search occurred, he could perhaps have
been eligible to “claim the protection of the Fourth Amendment.” Id. at 272.
      In Martinez-Aguero, this court held that an alien who attempted to
enter the United States in an unlawful manner was part of “the people” under
the purposes of the Fourth Amendment. 459 F.3d at 625. The alien, who did
not reside in the United States but regularly crossed the border to visit
family, attempted to enter with an expired visa, which American consular
officials had incorrectly told her would suffice for her border crossings. Id. at
620. This court held that the alien’s “regular and lawful entry of the United
States pursuant to a valid border-crossing card and her acquiescence in the
U.S. system of immigration constitute her voluntary acceptance of societal
obligations.” Id. at 625 (footnote omitted). The Martinez-Aguero court never
indicated that attempting to comply with United States immigration laws is
the only way that an alien can accept some societal obligations. On the
contrary, the opinion suggested that the standard for establishing substantial
connections is not high and that there would be few, if any, cases where an
alien who was voluntarily within the United States would be unable to
establish such connections. Id. (“There may be cases in which an alien’s
connection with the United States is so tenuous that he cannot reasonably
expect the protection of its constitutional guarantees . . . .” (emphases
added)).
      In the present case, Portillo-Munoz plainly satisfies both criteria of the
substantial connections test under Verdugo-Urquidez and Martinez-Aguero:
he is voluntarily present in the United States and has accepted several
societal obligations. First, Portillo-Munoz came to and remained in the

                                       17
                                      No. 11-10086

United States of his own volition. By contrast, in Verdugo-Urquidez, the
Court concluded that the alien was not voluntarily present in the United
States, because he had been brought to the country by the United States
Marshals. 494 U.S. at 273.
       Portillo-Munoz has also accepted several societal obligations, a fact that
is uncontested by the government. First, Portillo-Munoz has accepted and
fulfilled obligations to his American employers. At the time of his arrest, he
had been working a steady job for six months, as a ranch hand in Dimmitt,
Texas, where he was responsible for planting and harvesting crops, as well as
raising chickens. Portillo-Munoz obtained his firearm in order to protect his
employer’s chickens from coyotes. Prior to his employment at the ranch,
Portillo-Munoz worked at a dairy farm in Hereford, Texas, where he fed cattle
and ensured that their feed was properly stored. Second, Portillo-Munoz
accepted and fulfilled obligations to his landlord by paying rent for his home.
Third, he accepted and fulfilled obligations to his girlfriend and her daughter
by helping to financially support them. Finally, aside from unlawfully
entering the United States (a misdemeanor punishable by fine or
imprisonment of up to six months, 8 U.S.C. § 1325(a)), Portillo-Munoz has no
criminal record or history of arrests. Many United States citizens have
committed far more serious crimes, yet they still receive the constitutional
protections given to “the people.”7


       7
           See, e.g., Dawson v. Delaware, 503 U.S. 159, 167 (1992) (holding that the “First
Amendment rights” of a defendant, who had convicted of murder, “were violated by the
admission [in the sentencing phase] of [evidence of his membership in] the Aryan
Brotherhood . . . because the evidence proved nothing more than [the defendant’s] abstract
beliefs”); United States v. Webster, 162 F.3d 308, 333 (5th Cir. 1998) (“[The defendant’s]
experience in police procedure, resulting from his lengthy criminal record, belies the
assertion that he was unaware of his [Fourth Amendment] rights . . . .”).

                                            18
                                  No. 11-10086

      Moreover, Portillo-Munoz’s place in United States society resembles
that of many others. The Supreme Court recognized in Plyler that millions of
aliens who are unlawfully present in the United States are part of American
society: “The Attorney General [William French Smith, who served under
President Ronald Reagan] recently estimated the number of illegal aliens
within the United States at between 3 and 6 million. . . . [T]he Attorney
General noted that this subclass is largely composed of persons with a
permanent attachment to the nation . . . . [describing them as] ‘millions of
illegal aliens, many of whom have become, in effect, members of the
community.’” 457 U.S. at 219 n.17 (quoting J. Hearing before the Subcomm.
on Immigration, Refugees, and Int’l Law of the H. Comm. on the Judiciary
and the Subcomm. on Immigration and Refugee Policy of the S. Comm. on the
Judiciary, 97th Cong., 1st Sess., 9 (1981) (testimony of William French
Smith)).
      If an alien who undertook “periodic visits [to the United States] to
assist her aunt with retrieving her Social Security check” has substantial
connections to this country, Martinez-Aguero, 459 F.3d at 625, then surely
Portillo-Munoz does, as well. He has voluntarily come to the United States
and resided here for over 18 months, developing substantial connections with
this country by fulfilling societal obligations to his employers, his landlord,
his girlfriend and her daughter. He is “in effect, [a] member[] of the
community” like the aliens described in Plyler. 457 U.S. at 219 n.17.
Therefore, he is part of “the people,” and is entitled to the protections of the
Bill of Rights, including not only the Second Amendment, but also the First
and Fourth Amendments.
                                        C.

                                        19
                                  No. 11-10086

      Finally, the majority cites a number of cases that are inapposite to the
question presented in this case: whether Portillo-Munoz is part of “the
people.” The majority reasons that the cases it cites support the proposition
“that the Constitution does not prohibit Congress from making laws that
distinguish between citizens and aliens and between lawful and illegal
aliens.” Maj. Op. 7. Those cases may be relevant to whether 18 U.S.C.
§ 922(g)(5) violates the Second Amendment. This dissent does not discuss
that question, because, as explained above, I would remand for the district
court to answer it in the first instance.
      However, that is a distinct issue from the question which the majority
purports to answer, and which accordingly is the focus of this dissent:
whether aliens such as Portillo-Munoz are part of “the people,” and have any
rights at all, under the First, Second, and Fourth Amendments. Because
Portillo-Munoz has substantial connections with this country, and because
the majority’s holding effectively nullifies the rights of countless others like
him, I dissent from the majority’s dismissal of Portillo-Munoz’s Second
Amendment claim.




                                        20
