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Illegal Aliens and Other Constitutional Provisions:

The magistrate judge's opinion in the Second Amendment illegal alien case also reminded me of our own then-Judge Paul Cassell's opinion in a Fourth Amendment case involving an illegal alien who feloniously reentered the U.S. If the magistrate judge's opinion is adopted by the district court, and the decision is then appealed and affirmed using the reasoning that "the people" doesn't generally include illegal aliens, it may well have an important effect on Fourth Amendment illegal alien cases as well as Second Amendment ones.

UPDATE: Reader David Warren points out that then-Judge Cassell later expressly held the opposite as to an illegal alien who had not feloniously reentered the U.S. See U.S. v. Atienzo, 2005 WL 3334758 (D. Utah 2005):

In light of Esparza-Mendoza [the earlier case I linked to above], the question is now presented as to whether that decision should be extended to block illegal aliens who are not previously-deported felons from claiming Fourth Amendment protections. As just explained, this issue was specifically reserved in Esparza-Mendoza. The reasoning of Esparza-Mendoza does not automatically require the conclusion that illegal aliens who are not felons are categorically barred as a class from asserting Fourth Amendment rights. The opinion rests in no small part on the unique status of felons-who are generally excluded from the political process. With respect to illegal aliens who are not felons, the decision whether they fall outside the Fourth Amendment would seem to require a case-by-case determination. Because in this case the government does not challenge Atienzo's argument that he has sufficient connections, the court concludes that he can assert a Fourth Amendment claim.

While deported alien felons are excluded from the national community in a permanent way, the situation may be different for at least some persons who have committed no felonious criminal act other than to remain in this country illegally....

Having rejected the categorical position that all illegal aliens as a class lack sufficient connection to this country to assert Fourth Amendment rights, the court has no legal arguments before it disputing Atienzo's specific position that he has sufficient connections. In light of the posture of the case, the simplest course is for the court to then accept the uncontested specific view that Atienzo can claim Fourth Amendment protection.

The Second Amendment opinion I link to, of course, concludes that illegal aliens generally, not just illegal alien felons, lack Second Amendment rights.

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