From yesterday's decision in U.S. v. Medina-Cantu, by Judge Carolyn Dineen King and Kurt Engelhardt:
In U.S. v. Portillo-Munoz (5th Cir. 2011), this court held that 18 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 (2022), and U.S. v. Rahimi (2024).
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….
We acknowledge that there are reasonable arguments as to why Portillo-Munoz should be reconsidered post-Bruen and Rahimi. For instance, 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. 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….
Judge Jim Ho concurred in the judgment, concluding that Portillo-Munoz was indeed consistent with Bruen and Rahimi:
