Court decision sparks debate over Second Amendment rights and who counts as “the people”

Attorney William Kirk of Washington Gun Law opens his breakdown with a question he knows will hit a nerve: do illegal aliens – people in the country without lawful permission – have Second Amendment rights.

Kirk doesn’t pretend most viewers will hesitate. He says the gut reaction is usually, “Of course not,” and then he immediately complicates it by pointing out something many people ignore.

In Kirk’s telling, people who are unlawfully present still have other constitutional protections in real life, including First Amendment and Fourth Amendment rights, and they aren’t treated as if they have “no rights at all” just because of their status.

That’s the frame for the Sixth Circuit case he’s discussing: United States v. Escobar-Temal, a challenge to 18 U.S.C. § 922(g)(5)(A), the federal ban on firearm possession by an “alien” who is “illegally or unlawfully in the United States.”

Meanwhile, Mark W. Smith of The Four Boxes Diner comes in hotter and more absolute, calling it “breaking news” and insisting the case should begin and end with one conclusion: illegal aliens are not part of “the people,” and that’s the end of the Second Amendment question.

And Rox Laird at Courthouse News Service adds the steady, courtroom-grounded detail: the Sixth Circuit panel upheld the conviction, but it did it in a way that leaves a major argument still alive – whether some noncitizens can fall inside the Second Amendment’s protection depending on their “substantial connections” to the U.S.

The Case That Lit The Fuse

William Kirk says the statute at the center of the fight is blunt. If you are unlawfully in the U.S., it is illegal for you to possess a firearm.

Kirk describes the defendant, Milder Escobar-Temal, as a Guatemalan citizen who came to the U.S. illegally years ago and stayed. Kirk emphasizes the part that makes the case messy: he says Escobar-Temal was gainfully employed and had basically no criminal history besides a minor traffic issue.

Rox Laird’s reporting lines up with that general picture, saying Escobar-Temal had been living in Nashville since 2012 and working as a flooring contractor, with a traffic charge that was later dismissed. Laird reports that a search of his home turned up three firearms, which triggered the federal gun charge.

Mark Smith adds a darker layer that isn’t the focus of Kirk’s presentation. Smith says the firearms were discovered during an investigation into alleged sexual abuse involving a 14-year-old stepdaughter, and he bluntly calls those “not great facts” for someone trying to be a test case.

If you’re reading this like a normal person, that’s where the debate starts to feel uncomfortable: the legal question is broad, but the human facts can make people want to skip straight to the conclusion.

Still, all three sources agree on the legal posture that matters here. Escobar-Temal challenged his conviction under § 922(g)(5)(A) as unconstitutional under the Second Amendment, and the Sixth Circuit panel upheld the conviction.

Step One: Who Are “The People”?

Kirk says the entire argument turns on a phrase most people repeat without thinking about it: “the right of the people.”

He points to the Supreme Court’s language in United States v. Verdugo-Urquidez from 1990, where “the people” is described as persons who are part of the national community or who have developed sufficient connection with the country to be considered part of that community.

Kirk’s point is not that this automatically gives illegal aliens gun rights. His point is that the legal world has already treated “the people” as something other than “citizens only” in some contexts, which makes the Second Amendment debate harder than a bumper sticker.

Rox Laird reports the Sixth Circuit majority leaned into that same “connections” concept. In her summary, the panel majority rejected the idea that “the people” automatically excludes unlawfully present individuals, noting that courts have enforced Fourth Amendment rights for people unlawfully present in the U.S.

Laird also notes that the majority said the Supreme Court has referred to Second Amendment rights as applying to “citizens,” but did not expressly limit “the people” to citizens even in dicta, which the majority treated as meaningful.

This is exactly where Mark Smith calls foul.

Smith argues that the Sixth Circuit majority’s approach is backwards because it treats illegal aliens as part of “the people” at the textual level, then relies on history at step two to justify disarming them anyway. In Smith’s view, that’s the wrong kind of reasoning because it invites courts to play games with the first step.

Smith says the best part of the case is not even the majority opinion – it’s Judge Amul Thapar’s separate opinion.

Step Two: Even If You’re “In,” Can You Still Be Disarmed?

Here’s the twist that makes this decision so combustible.

William Kirk says the Sixth Circuit panel, looking at Escobar-Temal’s ties to the community, found his connections sufficient to treat him as part of “the people,” at least for purposes of moving forward in the analysis. That’s the moment that surprises a lot of viewers, and Kirk doesn’t hide that.

Then Kirk says the court still upheld the conviction anyway, after a historical analysis under the Bruen framework.

Rox Laird explains the majority’s reasoning in a way that’s easier to picture. She reports that Senior U.S. Circuit Judge Jane Branstetter Stranch wrote the majority opinion, joined by Judge Stephanie Dawkins Davis, and that the panel upheld the conviction even while accepting that Escobar-Temal “may not be dangerous.”

Laird highlights Stranch’s line that the government could disarm someone who is peaceable, not because of personal violence, but because of the person’s status and relationship to the sovereign – Stranch compared it to how, in 1777, the government could disarm a peaceable Quaker or loyalist.

Kirk describes that same logic in plainer words. He says the court treated “dangerousness” as the wrong fight, because the government’s justification wasn’t “you are violent,” but “your unlawful status means the government cannot confidently regulate you the same way.”

Kirk also explains why the defense got nowhere on a facial challenge. He says facial challenges are brutally hard because you have to show there is no set of circumstances where the law could be applied constitutionally, which he calls close to impossible.

And on the as-applied argument – “I’m not dangerous, so you can’t disarm me” – Kirk says the court still rejected it because the supposed problem was not personal temperament, but the lack of a lawful relationship with the government that would allow regulation.

That’s the legal core: the panel upheld the law, but it did it while leaving open language that some people read as a door crack for future litigants.

Thapar’s Concurrence And The Methodology Fight

Mark Smith treats Judge Thapar’s separate writing like the real event.

Smith says Thapar got the method right because, in Thapar’s view, the case should have been resolved at step one: illegal aliens are not part of “the people” as the Constitution uses that phrase, full stop.

Smith quotes Thapar’s framing as “plain and simple,” saying “the people” refers to American citizens who consented to the government, and that illegal aliens can’t assert “the right of the people to keep and bear arms.” Smith also praises Thapar for grounding that view in constitutional structure, founding-era history, and Supreme Court precedent.

Rox Laird similarly reports that Thapar disagreed with the majority’s view that someone living in the U.S. illegally could be entitled to bear arms, and she quotes Thapar’s blunt “We, the People of the United States means something specific—the citizens of the United States.”

This is where you can feel the deeper Second Amendment anxiety underneath all of it.

Kirk says the Sixth Circuit majority’s analysis is “well done,” but he calls it “mildly dangerous,” and he warns that some of the language could be reused in a different political moment to disarm other groups.

That’s not a small caution. That is a fear about how courts build tools that don’t stay locked in the toolbox.

Why This Debate Won’t Die Anytime Soon

If you combine Kirk, Smith, and Laird, you get a picture of why this case has such long legs.

The Sixth Circuit panel upheld the conviction, which sounds like a clean win for the government at first glance.

But the court’s path matters. Rox Laird’s reporting stresses the majority’s view that the Second Amendment certainly covers U.S. citizens, yet that doesn’t automatically exclude everyone else, and that “substantial connections” can matter for constitutional protections.

William Kirk is basically saying: if courts treat “the people” as a community-connections test in other amendments, it is not crazy that they’d wrestle with it here too, even if the final outcome is still disarmament.

Mark Smith, on the other hand, is waving a red flag that the “connections” logic is a trap. He argues it’s a waste of time to debate illegal alien Second Amendment rights, and he uses the case as a chance to hammer a bigger point: courts should not be tempted to treat “the people” as an elastic phrase that expands or contracts based on vibes.

My own read, taking all three voices seriously, is that this isn’t just a fight about immigration status. It’s a fight about what kind of Second Amendment doctrine we’re building for the next twenty years.

A “connections” test sounds moderate until you realize it can turn constitutional rights into a sliding scale where judges argue about how many ties count, which ties count, and who gets to decide. That kind of framework can feel fair in one case and dangerously flexible in the next.

At the same time, Thapar’s citizens-only framing has its own consequences, because once you start drawing bright lines about who counts as “the people,” you’d better be absolutely sure the line doesn’t get moved again later by people with uglier intentions.

Kirk ends by saying he expects more procedural moves, like a request for en banc review, and he promises to keep watching where it goes. Laird likewise frames it as a decision that upheld the conviction while exposing real disagreements among judges about the meaning of “the people.”

And Smith treats it as a message to the entire gun-rights world: methodology is destiny, because bad methodology spreads faster than bad facts.

For now, the Sixth Circuit outcome is simple on paper – Escobar-Temal’s conviction stands – but the argument behind it is going to keep ricocheting, because it forces the Second Amendment community to answer a question it usually dodges: are we fighting for a principle, or for a category, and what happens when courts start redefining both?