Sometimes You’re In, Sometimes You’re Out: Undocumented Immigrants and the Fifth Circuit’s Definition of “The People” in United States v. Portillo-Muñoz

On June 29, 2011, the U.S. Court of Appeals for the Fifth Circuit, in United States v. Portillo-Muñoz, upheld a federal statute prohibiting fire-arms possession by undocumented immigrants by concluding that undocumented immigrants are not part of “the people” granted Second Amendment rights. In doing so, the Fifth Circuit created an unprecedented distinction between types of constitutional rights and used that distinction to determine those to whom the rights apply. This Comment argues that courts should be wary of creating categories of constitutional rights, since such categories invite arbitrary classifications and allow legislatures to grant benefits to some people and not others.