United States v. Armando Portillo-Munoz, 2011 U.S. App. LEXIS 11976

Portillo-Munoz, an illegal Mexican national, was found with a .22 caliber handgun in a four-wheeler at the Rodeo Arena in Dimmit, Texas; he stated the gun was for killing coyotes.
A powdery substance in a folded dollar bill was found on Portillo, and he was arrested for unlawful carrying of a weapon and possession of a controlled substance.
PSR indicated Portillo first came to the U.S. in 2005, left, reentered illegally in 2009, and had been in the U.S. for about 18 months at the time of arrest; he worked as a ranch hand and claimed the firearm was for protection.
Portillo was indicted on August 31, 2010 for illegal, unlawfully present in the United States in possession of a firearm in violation of 18 U.S.C. § 922(g)(5).
Defense moved to dismiss, arguing § 922(g)(5) violates the Second Amendment and Due Process; the district court denied the motion; Portillo entered a conditional guilty plea on January 12, 2011, admitting illegal presence and firearm possession.
The district court sentenced Portillo to ten months' imprisonment followed by three years of supervised release; Portillo timely appealed.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Does § 922(g)(5) violate the Second Amendment?	Portillo argues aliens illegally present cannot be barred from bearing arms under the Second Amendment.	The government contends the Second Amendment does not extend protection to illegal aliens, so § 922(g)(5) is constitutional.	Constitutional; Portillo’s Second Amendment claim rejected.
Did Portillo waive his Fifth Amendment due process challenge?	Portillo asserts due process rights under the Fifth Amendment were violated by § 922(g)(5).	The government contends Portillo waived due to the scope of his conditional plea focusing on the Second Amendment.	Waived; due process challenge not reached.

District of Columbia v. Heller, 554 U.S. 570 (U.S. 2008) (recognizes individual right to bear arms; discusses scope of rights)
Verdugo-Urquidez, 494 U.S. 259 (U.S. 1990) (limits 'the people' concept to those with sufficient connection to the country)
Martinez-Aguero v. Gonzalez, 459 F.3d 618 (5th Cir. 2006) (aliens with substantial connections may be within ‘the people’ for Fourth Amendment purposes)
Plyler v. Doe, 457 U.S. 202 (U.S. 1982) (aliens unlawfully present are part of American society for due process considerations)
Mathews v. Diaz, 426 U.S. 67 (U.S. 1976) (Congress may distinguish among aliens under immigration power; rights differ for citizens)
Truax v. Raich, 239 U.S. 33 (U.S. 1915) (upholds protections for lawful inhabitants against denial of livelihood)
Lynch v. Cannatella, 810 F.2d 1363 (5th Cir. 1987) (recognizes non-uniform treatment of aliens and citizens; rights distinctions exist)
Emerson, 270 F.3d 203 (5th Cir. 2001) (endorses individual-rights model for the Second Amendment)
McDonald v. City of Chicago, 130 S. Ct. 3020 (U.S. 2010) (applies Second Amendment to states via incorporation)