United States v. Medina-Cantu
Citation113 F.4th 537
Date Filed2024-08-27
Docket23-40336
Cited17 times
StatusPublished
Full Opinion (html_with_citations)
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United States Court of Appeals
for the Fifth Circuit
____________ United States Court of Appeals
Fifth Circuit
FILED
No. 23-40336 August 27, 2024
____________
Lyle W. Cayce
United States of America, Clerk
Plaintiff—Appellee,
versus
Jose Paz Medina-Cantu,
Defendant—Appellant.
______________________________
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 2:22-CR-426-1
______________________________
Before King, Ho, and Engelhardt, Circuit Judges.
Per Curiam:
In United States v. Portillo-Munoz, 643 F.3d 437, 442(5th Cir. 2011), this court held that18 U.S.C. § 922
(g)(5), which prohibits an illegal alien from possessing a firearm or ammunition, is constitutional under the Second Amendment. In the present case, Defendant-Appellant Jose Paz Medina- Cantu brings another Second Amendment challenge to § 922(g)(5), arguing that Portillo-Munoz has been abrogated by the Supreme Court’s decisions in New York State Rifle & Pistol Ass’n v. Bruen,597 U.S. 1
(2022), and United
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States v. Rahimi, 144 S. Ct. 1889 (2024). 1 The Government, on the other
hand, contends that Portillo-Munoz remains good law.
We agree with the Government and hold that the Supreme Court’s
decisions in Bruen and Rahimi did not unequivocally abrogate Portillo-
Munoz’s precedent. As such, under this circuit’s rule of orderliness, we are
bound to follow Portillo-Munoz. The district court’s judgment is
AFFIRMED.
I.
On July 13, 2022, Defendant-Appellant Jose Paz Medina-Cantu was
charged with possession of a firearm and ammunition as an illegal alien in
violation of 18 U.S.C. §§ 922(g)(5)(A) and 924(a)(2), and illegal reentry into the United States in violation of8 U.S.C. § 1326
(a) and (b). On November 14, 2022, Medina-Cantu moved to dismiss the count of his indictment charging him with unlawful possession, arguing that § 922(g)(5) is unconstitutional in light of the Supreme Court’s decision in Bruen. The district court denied Medina-Cantu’s motion, holding that Bruen did not abrogate this court’s decision in Portillo-Munoz, which held that “the phrase ‘the people’ in the Second Amendment of the Constitution does not include aliens illegally in the United States.” See Portillo-Munoz,643 F.3d at 442
;
U.S. Const. amend. II (enshrining “the right of the people to keep and bear
Arms” (emphasis added)).
On February 23, 2023, Medina-Cantu appeared before the district
court and pleaded guilty to both counts of his indictment without a plea
_____________________
1
Medina-Cantu also argues that § 922(g)(5), as applied to him, exceeds Congress’s
authority under the Commerce Clause, but he acknowledges that this argument is
foreclosed. See United States v. Seekins, No. 21-10556, 2022 WL 3644185, at *2 (5th Cir.
Aug. 24, 2022) (summarizing precedent).
2
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agreement. During this hearing, Medina-Cantu expressly preserved his
argument that § 922(g)(5) is unconstitutional under the Second
Amendment. On May 31, 2023, the district court sentenced Medina-Cantu
to fifteen months of imprisonment, followed by two years of supervised
release. This appeal followed.
II.
On appeal, Medina-Cantu argues that 18 U.S.C. § 922(g)(5) is unconstitutional in light of the Supreme Court’s decisions in Bruen and Rahimi. We review a preserved challenge to the constitutionality of a federal statute de novo. United States v. Penn,969 F.3d 450, 459
(5th Cir. 2020).
As noted above, this court held in Portillo-Munoz that § 922(g)(5) is
constitutional under the Second Amendment, reasoning that the phrase “the
people” in the Second Amendment does not include aliens unlawfully
present in the United States. 643 F.3d at 442. Under this circuit’s rule of orderliness, a three-judge panel “may not overturn another panel’s decision, absent an intervening change in the law, such as by a statutory amendment, or the Supreme Court, or our en banc court.” In re Bonvillian Marine Serv., Inc.,19 F.4th 787, 792
(5th Cir. 2021) (quoting Jacobs v. Nat’l Drug Intel. Ctr.,548 F.3d 375, 378
(5th Cir. 2008)). “In particular, for a Supreme Court decision to change our Circuit’s law, it ‘must be more than merely illuminating with respect to the case before [the court]’ and must ‘unequivocally’ overrule prior precedent.” Tech. Automation Servs. Corp. v. Liberty Surplus Ins.,673 F.3d 399, 405
(5th Cir. 2012) (alteration in original) (quoting Martin v. Medtronic, Inc.,254 F.3d 573, 577
(5th Cir. 2001)).
Accordingly, unless we can conclude that Bruen and/or Rahimi
“unequivocally” abrogated Portillo-Munoz, Medina-Cantu’s Second
Amendment challenge fails due to the rule of orderliness.
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In Portillo-Munoz, this court adjudicated the constitutionality of
§ 922(g)(5) in light of the Supreme Court’s decision in District of Columbia
v. Heller, 554 U.S. 570(2008), which held that the Second Amendment guarantees an individual right to possess and carry firearms. See Portillo- Munoz, 643 F.3d at 439–42. We noted that although the Supreme Court in Heller did not purport to “clarify the entire field” of the Second Amendment,id.
at 440 (quoting Heller,554 U.S. at 635
), “the Court’s language d[id] provide some guidance as to the meaning of the term ‘the people’ as it is used in the Second Amendment,”id.
Namely, we highlighted that the Court in Heller held that 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.
(quoting Heller,554 U.S. at 635
). We also noted the Court’s conclusions that the term “the people” is generally employed in the Constitution to refer to “all members of the political community,” and that there is a “strong presumption that the Second Amendment right is exercised individually and belongs to all Americans.”Id.
(quoting Heller, 554
U.S. at 580–81).
Drawing upon this language in Heller, we concluded that “[i]llegal
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.” Id. Accordingly, we held that the Second Amendment’s
protections do not extend to illegal aliens, and that § 922(g)(5) is therefore
constitutional under the Amendment. Id. at 440, 442.
In Bruen, the Supreme Court clarified the proper framework for
adjudicating Second Amendment challenges. The Court noted that many
lower courts, since Heller, had developed a two-step test for assessing Second
Amendment claims. Bruen, 597 U.S. at 18. At step one, the Government
could justify its regulation by “establish[ing] that the challenged law
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regulates activity falling outside the scope of the right as originally
understood.” Id.(alteration in original) (quoting Kanter v. Barr,919 F.3d 437, 441
(7th Cir. 2019), abrogated by Bruen,597 U.S. 1
). If the Government was able to show that the regulated conduct falls outside of the Second Amendment’s original scope, the court would conclude that the regulated activity is categorically unprotected.Id.
If the historical evidence at step one was “inconclusive or suggest[ed] that the regulated activity is not categorically unprotected,” courts would move on to step two, and analyze “how close the law comes to the core of the Second Amendment right and the severity of the law’s burden on that right.”Id.
(quoting Kanter,919 F.3d at 441
). If a “core” Second Amendment right (e.g., the right to self-defense in the home) was burdened, courts applied a strict scrutiny standard.Id.
at
18–19. Otherwise, courts would apply intermediate scrutiny. Id. at 19.
The Supreme Court in Bruen found that step one was “broadly
consistent with Heller, which demands a test rooted in the Second
Amendment’s text, as informed by history.” Id. But the Court found that
step two, referred to as “means-end scrutiny,” “[was] inconsistent with
Heller’s historical approach.” Id. at 24. Accordingly, the Court clarified the
proper standard for adjudicating Second Amendment challenges:
When the Second Amendment’s plain text covers an
individual’s conduct, the Constitution presumptively protects
that conduct. The government must then justify its regulation
by demonstrating that it is consistent with the Nation’s
historical tradition of firearm regulation. Only then may a court
conclude that the individual’s conduct falls outside the Second
Amendment’s “unqualified command.”
Id. (quoting Konigsberg v. State Bar of Cal., 366 U.S. 36, 49 n.10 (1961)).
To assess the constitutionality of § 922(g)(5) under Bruen’s standard,
we must first assess whether the Second Amendment’s plain text covers the
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conduct regulated by the statute. If the answer to that question is yes, then
the Government must justify § 922(g)(5) by demonstrating that it is
consistent with the United States’s historical tradition of firearm regulation.
Under Bruen’s standard, our precedent dictates that Medina-Cantu’s
Second Amendment challenge fails at this first step. We held in Portillo-
Munoz that the Second Amendment’s plain text does not cover the conduct
of aliens who are unlawfully present in the United States. Consistent with
Bruen’s mandate, we reached our decision in Portillo-Munoz by interpreting
the text of the Second Amendment—i.e., the meaning of the phrase “the
people”—and we did not engage in the “means-end scrutiny” practice that
the Supreme Court prohibited in Bruen. Additionally, Bruen provided no
clarification as to the meaning of “the people” in the Second Amendment.
As Justice Alito noted in his concurring opinion, Bruen “decide[d] nothing
about who may lawfully possess a firearm.” Bruen, 597 U.S. at 72(Alito, J., concurring) (emphasis added); see alsoid.
at 31–32 (noting that it was
undisputed that the petitioners raising the Second Amendment challenge
were “ordinary, law-abiding, adult citizens”—“part of ‘the people’ whom
the Second Amendment protects”). Accordingly, we find that the Supreme
Court’s decision in Bruen did not abrogate Portillo-Munoz. 2
Having concluded that Portillo-Munoz survived Bruen, we turn next to
Rahimi. In Rahimi, the Supreme Court clarified the analytical framework
_____________________
2
We note that our discussion of Bruen largely mirrors that of our colleagues on the
Eighth Circuit in United States v. Sitladeen, 64 F.4th 978(8th Cir. 2023), which addressed substantively the same issue as the case before this court. The Eighth Circuit, post-Heller and pre-Bruen, had held that “the protections of the Second Amendment do not extend to aliens illegally present in this country.” Seeid.
at 983 (quoting United States v. Flores,663 F.3d 1022, 1023
(8th Cir. 2011)). After Bruen, a three-judge panel of the Eighth Circuit held
that it remained bound by its pre-Bruen precedent in rejecting a Second Amendment
challenge to § 922(g)(5), for essentially the same reasons described above. See id. at 985–
86.
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articulated in Bruen. Namely, the Court noted that “the Second Amendment
permits more than just those regulations identical to ones that could be found
in 1791.” Rahimi, 144 S. Ct. at 1897–98. Therefore, as the Court held, when
determining whether a regulation is consistent with the United States’s
historical tradition of firearm regulation, courts must examine “principles
that underpin our regulatory tradition,” but they need not identify a precise
historical analogue to deem that regulation constitutional under the Second
Amendment. Id. at 1898.
Rahimi, like Bruen, did not unequivocally abrogate our precedent that
the plain text of the Second Amendment does not encompass illegal aliens.
Rahimi, like Bruen, provides little clarification as to who is protected by the
Second Amendment. It is true that the Government in Rahimi advanced the
theory that the Second Amendment protects only “law-abiding, responsible
citizens.” Id. at 1944 (Thomas, J., dissenting). The majority in Rahimi
acknowledged this argument only in part, explaining that the term
“responsible”—as utilized in Heller and Bruen—was employed to “describe
the class of ordinary citizens who undoubtedly enjoy the Second Amendment
right.” Id. at 1903. The Supreme Court concluded that “those decisions did
not define the term and said nothing about the status of citizens who were not
‘responsible.’” Id. As Medina-Cantu notes, this portion of Rahimi may
indicate that this court in Portillo-Munoz overread Heller’s “law-abiding,
responsible citizens” language. But while Rahimi would undoubtedly be
“illuminating” if we were to reconsider Portillo-Munoz, we cannot conclude
that Rahimi unequivocally abrogated our prior holding that illegal aliens are
not “members of the political community” covered by the Second
Amendment. See Tech. Automation, 673 F.3d at 405; Portillo-Munoz,643 F.3d at 440
.
We acknowledge that there are reasonable arguments as to why
Portillo-Munoz should be reconsidered post-Bruen and Rahimi. For instance,
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Portillo-Munoz’s textual interpretation of the Second Amendment notably
did not include a historical analysis, relying instead on the Supreme Court’s
language in Heller. See Portillo-Munoz, 643 F.3d at 439–42. And Rahimi’s
discussion of the term “responsible” provides some indication that the
Supreme Court may, in future cases, reject other arguments that the Second
Amendment’s reference to “the people” excludes certain individuals. But,
absent clearer indication that Portillo-Munoz has been abrogated, only the
Supreme Court—or this court sitting en banc—can overturn our precedent.
* * *
To summarize, this court held in Portillo-Munoz that illegal aliens are
not “members of the political community” covered by the plain text of the
Second Amendment. 643 F.3d at 440, 442. The majority opinions in Bruen
and Rahimi did not address this issue, nor did they unequivocally abrogate
our holding in Portillo-Munoz. Accordingly, following the rule of orderliness,
we are bound to follow Portillo-Munoz and uphold the constitutionality of
§ 922(g)(5) under the Second Amendment. The district court’s judgment is
AFFIRMED.
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James C. Ho, Circuit Judge, concurring in the judgment:
The Second Amendment protects the right of “the people” to keep
and bear arms. Our court has held that the term “the people” under the
Second Amendment does not include illegal aliens. See United States v.
Portillo-Munoz, 643 F.3d 437, 442 (5th Cir. 2011).
The defendant here contends that Portillo-Munoz is no longer good
law, in light of recent decisions from the Supreme Court. But there’s no basis
to question our precedent.
To begin with, no Supreme Court precedent compels the application
of the Second Amendment to illegal aliens—and certainly not New York State
Rifle & Pistol Association v. Bruen, 597 U.S. 1(2022), or United States v. Rahimi,602 U.S. _
(2024). That should be the end of the matter. We should not extend rights to illegal aliens any further than what the law requires. Cf. Young Conservatives of Texas Foundation v. Smatresk,78 F.4th 159, 166
(5th
Cir. 2023) (Ho, J., dissenting from denial of rehearing en banc) (“Our
national objectives are undercut when [we] encourage illegal entry into the
United States.”).
Moreover, it’s already well established that illegal aliens do not have
Second Amendment rights. In United States v. Verdugo-Urquidez, 494 U.S.
259(1990), the Court noted that “the people” is “a term of art employed in select parts of the Constitution”—namely, the First, Second, Fourth, Ninth, and Tenth Amendments.Id. at 265
. The term “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.”Id.
(emphasis added).
To be sure, Verdugo-Urquidez involved the interpretation of the
Fourth Amendment, not the Second. But the Court later quoted this same
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passage verbatim when it was determining the proper reading of the Second
Amendment in District of Columbia v. Heller, 554 U.S. 570, 580 (2008).
Illegal aliens don’t qualify under the definition of “the people” set
forth in Verdugo-Urquidez and Heller—not as a matter of common sense or
Court precedent.
As to common sense, 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. Id.
And as to precedent, the Court has repeatedly explained that “an alien
. . . does not become one of the people to whom these things are secured by our
Constitution by an attempt to enter forbidden by law.” United States ex rel.
Turner v. Williams, 194 U.S. 279, 292(1904) (quoted in Verdugo-Urquidez,494 U.S. at 265
) (emphasis added). But that’s, of course, the very definition
of an illegal alien—one who “attempts to enter” our country in a manner
“forbidden by law.” So illegal aliens are not part of “the people” entitled to
the protections of the Second Amendment.
Moreover, the Court has provided further reason why it reaches this
conclusion. For an illegal alien “[t]o appeal to the Constitution is to concede
that this is a land governed by that supreme law.” Id.And “the power to exclude [aliens from the United States] has been determined to exist” under our Constitution.Id.
So, the Court concluded, “those who are excluded cannot assert the rights in general obtaining in a land to which they do not belong as citizens or otherwise.”Id.
I concur in the judgment.
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