United States v. Medina-Cantu

In United States v. Medina-Cantu, —- F.4th —-, No. 23-40336 (5th Cir. Aug. 27, 2024) (per curiam), the Fifth Circuit held that recent Supreme Court decisions have not abrogated the Fifth Circuit’s prior holding that 18 U.S.C. § 922(g)(5) — which prohibits illegal aliens from possessing a firearm or ammunition — is constitutional under the Second Amendment.

Medina-Cantu argued that the Fifth Circuit’s prior decision, in United States v. Portillo-Munoz, 643 F.3d 437 (5th Cir. 2011), is no longer valid in light of the Supreme Court’s decisions in New York State Rifle & Pistol Ass’n v. Bruen, 597 U.S. 1 (2022), and United States v. Rahimi, 144 S. Ct. 1889 (2024).

In Portillo-Munoz, the court had concluded that § 922(g)(5) is constitutional because “the phrase ‘the people’ in the Second Amendment does not include aliens unlawfully present in the United States.” More recently, the Supreme Court “clarified the proper standard for adjudicating Second Amendment challenges,” so the Fifth Circuit applied that clarified standard in this case. It held that Medina-Cantu’s argument fails the first prong of the test because “the Second Amendment’s plain text does not cover the conduct of aliens who are unlawfully present in the United States.” And Bruen “provided no clarification as to the meaning of ‘the people’ in the Second Amendment.”

Not long after Bruen, the Supreme Court in Rahimi “clarified the analytical framework articulated in Bruen,” directing courts to examine “principles that underpin our regulatory tradition” although they “need not identify a precise historical analogue to deem [a] regulation constitutional under the Second Amendment.” Like Bruen, Rahimi provided “little clarification as to who is protected by the Second Amendment,” so it “did not unequivocally abrogate” Portillo-Munoz.

The Court “acknowledge[d] that there are reasonable arguments as to why Portillo-Munoz should be reconsidered post-Bruen and Rahimi,” but only the Supreme Court or the en banc Fifth Circuit can overturn prior Fifth Circuit precedent.

Concurrence: Judge James C. Ho concurred in the judgment, but he wrote separately to emphasize that “[i]llegal aliens don’t qualify under the definition of ‘the people’ … [either] as a matter of common sense or Court precedent.” In his words, “an illegal alien does not become ‘part of a national community’ by unlawfully entering it, any more than a thief becomes an owner of property by stealing it.”