United States v. Escobar‑Temal: Defining “the People” and Disarming the Unregulable Under the Second Amendment

I. Introduction

In United States v. Milder Escobar‑Temal, No. 24‑5668 (6th Cir. Dec. 15, 2025), the Sixth Circuit confronted a closely watched question at the intersection of the Second Amendment and immigration law: whether a person who is unlawfully present in the United States can be part of “the people” whose “right to keep and bear Arms, shall not be infringed,” and if so, whether 18 U.S.C. § 922(g)(5)(A)—the federal ban on firearm possession by aliens “illegally or unlawfully in the United States”—is constitutional.

Judge Jane B. Stranch, writing for the majority (joined by Judge Davis), concluded that:

The Second Amendment’s reference to “the people” does include at least some unlawfully present noncitizens who have developed “sufficient connections” to the national community; and
Nonetheless, § 922(g)(5)(A) is constitutional both facially and as applied to Escobar‑Temal, because there is a longstanding historical tradition of disarming persons who lack a “regulable relationship” to the sovereign.

Judge Amul Thapar concurred in the judgment but dissented in part in a lengthy separate opinion. He would have held at the first step of the Supreme Court’s Bruen framework that “the people” means citizens—members of the American political community—and that unlawfully present aliens therefore have no Second Amendment right at all. In his view, the case “begins and ends at Step 1.”

This split produces two important doctrinal developments:

A precedential Sixth Circuit holding that some unlawfully present noncitizens fall within “the people” protected by the Second Amendment, if they have “sufficient connections” to the United States; and
A refined reading of Bruen and Rahimi under which Congress may disarm not only historically “dangerous” classes (such as felons or domestic abusers), but also classes who lack a sufficiently formal and regulable relationship to the government—here, persons unlawfully present in the country.

Because this opinion is “RECOMMENDED FOR PUBLICATION,” it establishes binding precedent within the Sixth Circuit and deepens an emerging circuit split over the constitutional status of § 922(g)(5)(A) and the scope of “the people.”

II. Background of the Case

A. Factual and Procedural Background

Milder Escobar‑Temal, a Guatemalan national born in 1987, entered the United States unlawfully around 2012 and settled in Nashville, Tennessee. Over roughly a decade, he:

Worked consistently as a flooring contractor;
Accumulated essentially no criminal record (a 2016 no‑license driving charge was dismissed); and
Formed a family: he remarried in 2018 and had two children who are U.S. citizens.

In October 2022, Nashville police responded to allegations that Escobar‑Temal was sexually abusing his 14‑year‑old stepdaughter. During a search incident to arrest, officers discovered three firearms in his residence. Federal authorities charged him under 18 U.S.C. § 922(g)(5)(A) for possessing firearms while “illegally or unlawfully in the United States.”

Escobar‑Temal moved to dismiss the indictment, arguing that:

§ 922(g)(5)(A) is facially unconstitutional under the Second Amendment; and
It is also unconstitutional as applied to him.

The Government responded that:

Unlawfully present aliens are not part of “the people” in the Second Amendment; and
Even if they were, historical tradition supports disarming persons in situations analogous to those of unlawfully present aliens.

The district court:

Assumed, but did not definitively hold, that “the people” includes unlawfully present individuals; and
Denied the motion to dismiss on the ground that § 922(g)(5)(A) is consistent with founding‑era disarmament of persons who refused allegiance to the sovereign.

Escobar‑Temal entered a conditional guilty plea preserving his right to appeal the Second Amendment ruling, was sentenced to twelve months and one day in prison plus three years of supervised release, and appealed to the Sixth Circuit.

B. The Governing Legal Framework: Bruen and the Second Amendment

The Supreme Court’s modern Second Amendment cases, culminating in New York State Rifle & Pistol Ass’n v. Bruen, 597 U.S. 1 (2022), establish a two‑step test:

Step One – Textual Coverage: Does the “plain text” of the Second Amendment, understood at the founding, cover the challenged conduct? If not, the analysis ends and the law stands.
Step Two – Historical Tradition: If the conduct is covered, the Government must justify the regulation by showing it is consistent with the Nation’s historical tradition of firearm regulation. Courts look for “historical analogues,” not exact “twins.”

The Sixth Circuit recently applied this framework in United States v. Williams, 113 F.4th 637 (6th Cir. 2024), to uphold the felon‑in‑possession ban (§ 922(g)(1)) but only as applied to those who are actually “dangerous,” emphasizing that felons are still part of “the people.” Escobar‑Temal forces the court to decide how that framework applies to noncitizens who are unlawfully present.

III. Summary of the Opinion

A. The Majority (Judge Stranch)

The majority proceeds through both steps of Bruen and ultimately affirms the conviction:

Coverage: Escobar‑Temal is part of “the people.”
Drawing on Supreme Court and circuit precedent interpreting “the people” in the First, Second, and Fourth Amendments, the majority holds that the phrase includes not only citizens but also some noncitizens—including some unlawfully present ones—who have “developed sufficient connection with this country to be considered part of [the national] community.” Applying that standard, the court finds Escobar‑Temal’s decade‑long residence, steady work, and U.S.‑citizen children make him part of “the people.”
Historical tradition: Congress may disarm those who lack a regulable relationship to the sovereign.
At Step Two, the court surveys English and colonial history and distinguishes between:
- Laws disarming groups deemed dangerous because of violent conduct; and
- Laws disarming groups (such as noncitizens, “papists,” loyalists, and Native Americans) who, even if not individually violent, were insufficiently bound to the sovereign to be reliably regulated.
The majority rejects the idea that modern unlawfully present aliens are empirically more violent than citizens; instead it reasons that their lack of a formal legal relationship to the U.S. government makes it harder to enforce the modern firearms regulatory regime against them. That rationale, the court holds, is a permissible analogue to founding‑era disarmament of those outside the sovereign’s regulable control. Hence § 922(g)(5)(A) is consistent with historical tradition and is facially constitutional.
As‑applied challenge fails.
Borrowing language from Williams, Escobar‑Temal argues that even if unlawful aliens are dangerous as a class, he should have an opportunity to show he is not individually dangerous. The majority distinguishes Williams:
- In Williams, the disarmament rationale was dangerousness, an attribute that can vary from person to person.
- In § 922(g)(5)(A), the rationale is lack of a legal relationship with the sovereign—a legal status that exists by definition for all unlawfully present aliens until that status changes.
Because this relationship‑based rationale is categorical and not fact‑dependent in the same way, no individualized hearing on dangerousness is constitutionally required. The statute is therefore constitutional as applied to Escobar‑Temal.

B. Judge Thapar’s Separate Opinion (Dissent in Part; Concurrence in Judgment)

Judge Thapar agrees that Escobar‑Temal’s conviction must be affirmed, but for a fundamentally different reason:

He would end the analysis at Step One of Bruen by holding that “the people” means “citizens”, i.e., members of the American political community who consented to the Constitution and participate in self‑government.
Because illegal aliens never consented and are not part of the political community, they are categorically excluded from the Second Amendment; thus § 922(g)(5)(A) raises no Second Amendment issue at all.

He faults the majority for:

Relying on United States v. Verdugo‑Urquidez, 494 U.S. 259 (1990), and its “sufficient connections” language, which he describes as non‑binding dicta ill‑suited for Second Amendment questions;
Over‑reading First and Fourth Amendment cases to imply that illegal aliens share all the same “people”‑based rights as citizens; and
Adopting an amorphous, judge‑made “connections” test that risks arbitrary and inconsistent outcomes and intrudes on Congress’s and the Executive’s constitutionally assigned roles in immigration and naturalization.

In his view, the constitutional structure, founding‑era history, and Supreme Court precedent (including Heller, McDonald, and Bruen) all “dispositively” show that “the people” refers to citizens, not to aliens who are unlawfully in the United States.

IV. Analysis

A. Precedents and Authorities Cited

1. Core Second Amendment Cases

District of Columbia v. Heller, 554 U.S. 570 (2008)
– Recognized an individual right “of the people” to keep and bear arms, especially for self‑defense in the home.
– Interpreted “the people” across the Constitution as referring to “all members of the political community,” while repeatedly describing the right as belonging to “citizens.”
– Emphasized that the right is not unlimited and that longstanding prohibitions (e.g., on certain classes of persons) might be constitutional.
McDonald v. City of Chicago, 561 U.S. 742 (2010)
– Incorporated the Second Amendment against the States via the Fourteenth Amendment, repeatedly linking gun rights to “citizenship” and describing them as “privileges of American citizenship.”
New York State Rifle & Pistol Ass’n v. Bruen, 597 U.S. 1 (2022)
– Established the two‑step text‑and‑history test now applied in all Second Amendment cases.
– Rejected “means‑end balancing” and required governments to justify regulations by pointing to analogous historical restrictions.
– Referred to “ordinary, law‑abiding citizens” as the paradigm Second Amendment right‑holders.
United States v. Rahimi, 602 U.S. 680 (2024)
– Upheld § 922(g)(8), the ban on firearm possession by individuals subject to domestic‑violence restraining orders.
– Clarified that the historical inquiry asks whether the government may temporarily disarm persons within the political community based on legitimate, historically rooted criteria (here, dangerousness), rather than whether whole categories are excluded from “the people.”

2. Sixth Circuit’s Own Second Amendment Doctrine: Williams

In United States v. Williams, 113 F.4th 637 (6th Cir. 2024), the Sixth Circuit considered a facial and as‑applied challenge to § 922(g)(1) (felon‑in‑possession):

It held that felons remain part of “the people,” because they retain Fourth Amendment rights and because nothing in “the people” language itself excludes them.
However, it upheld class‑based disarmament of felons as consistent with a robust historical tradition of disarming those considered “dangerous,” provided individuals can show they themselves are not dangerous.

Escobar‑Temal builds directly on Williams:

The majority borrows the conceptual distinction (drawn from then‑Judge Barrett’s Kanter dissent) between:
- Who is inside “the people”; and
- Which members of “the people” may nonetheless be disarmed under historically grounded rules.
But it adds a new basis for class‑based disarmament: lack of a structured relationship with the sovereign, not just demonstrated dangerousness.

3. Cross‑Amendment Cases on “the People” and on Aliens’ Rights

United States v. Verdugo‑Urquidez, 494 U.S. 259 (1990)
– Addressed whether the Fourth Amendment applied to a Mexican national whose house in Mexico was searched by U.S. agents.
– Described “the people” as “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.”
– Suggested that some aliens physically present in the U.S. may obtain constitutional protections once they develop substantial connections, but rejected protection for a briefly present, involuntarily transported defendant.
– The majority leans heavily on this “sufficient connections” formulation; the Thapar opinion treats it as dicta and argues that Heller refined or displaced it by speaking of the “political community.”
Plyler v. Doe, 457 U.S. 202 (1982)
– Held that even unlawfully present aliens are “persons” entitled to Due Process and Equal Protection under the Fifth and Fourteenth Amendments.
– The majority uses this to reinforce its view that noncitizens can hold constitutional rights when the text refers to “persons,” supporting a broad reading of “the people.”
United States ex rel. Turner v. Williams, 194 U.S. 279 (1904), and Bridges v. Wixon, 326 U.S. 135 (1945)
– Emphasize the government’s plenary power to exclude or deport aliens and suggest that those attempting to enter unlawfully “do[] not become one of the people” and “bring[] with [them] no constitutional rights” by that attempt.
– The majority construes these cases as addressing persons at the moment of entry; Judge Thapar reads them more broadly as confirming that illegal entrants are outside “the people” for constitutional‑rights purposes.

4. Prior Second Amendment Cases Involving Noncitizens

The majority canvasses decisions from multiple circuits:

Recognizing or assuming possible coverage:
- United States v. Meza‑Rodriguez, 798 F.3d 664 (7th Cir. 2015) – held that an unlawfully present individual was part of “the people” but sustained § 922(g)(5) under intermediate scrutiny (pre‑Bruen); later questioned in Carbajal‑Flores.
- United States v. Jimenez‑Shilon, 34 F.4th 1042 (11th Cir. 2022) – did not rule out that some illegal aliens may be part of “the people” but upheld § 922(g)(5) by assuming coverage and proceeding to historical analysis.
- United States v. Huitron‑Guizar, 678 F.3d 1164 (10th Cir. 2012); United States v. Torres, 911 F.3d 1253 (9th Cir. 2019); United States v. Perez, 6 F.4th 448 (2d Cir. 2021) – assumed without deciding that illegal aliens are part of “the people,” but upheld § 922(g)(5).
- United States v. Carbajal‑Flores, 143 F.4th 877 (7th Cir. 2025) – declined to overrule Meza‑Rodriguez outright but cast it as an “outlier” in light of Bruen and Rahimi.
Excluding illegal aliens from “the people”:
- United States v. Carpio‑Leon, 701 F.3d 974 (4th Cir. 2012); United States v. Flores, 663 F.3d 1022 (8th Cir. 2011); United States v. Portillo‑Munoz, 643 F.3d 437 (5th Cir. 2011) – hold that illegal aliens are not part of “the people” protected by the Second Amendment.
- United States v. Medina‑Cantu, 113 F.4th 537 (5th Cir. 2024) – reaffirmed Portillo‑Munoz under Bruen; Judge Ho concurred, doubting that illegal aliens have Second Amendment rights.

Judge Thapar stresses that the Sixth Circuit is now effectively alone in holding—rather than assuming—that some illegal aliens are part of “the people” for Second Amendment purposes.

B. The Majority’s Legal Reasoning

1. Step One: Who Are “the People” in the Second Amendment?

The majority’s Step One analysis has two layers: doctrinal and historical.

a. Doctrinal Layer: Intratextual Reading of “the People”

The majority begins by noting that:

The phrase “the right of the people” appears in the First, Second, and Fourth Amendments, and the Supreme Court has said this phrase has the “same meaning” across those provisions.
Cases like Heller and Verdugo‑Urquidez have already relied on cross‑Amendment comparisons to define “the people.”

From there, the majority reasons:

Mere unlawful presence, at the moment of entry, does not confer constitutional rights (Turner, Bridges), but that does not answer what happens after an alien has remained long enough to develop substantial ties.
Verdugo‑Urquidez articulates a general test: “the people” includes those who:
- Are part of the “national community”; or
- Have “developed sufficient connection with this country to be considered part of that community.”
Other Supreme Court cases make clear that even unlawfully present aliens are “persons” for Due Process and Equal Protection purposes (Plyler), supporting the idea that constitutional rights are not strictly limited to citizens.
Sixth Circuit precedent has already recognized Fourth Amendment rights for unlawfully present persons (e.g., Urrieta), implying that such persons are sometimes within “the people” for that Amendment.

The majority rejects the Government’s reliance on Heller’s repeated use of “citizens”:

Heller nowhere states that “the people” is limited to citizens, and the fact that citizens are included does not logically exclude noncitizens.
When the Constitution intends to speak only of “citizens,” it does so expressly (e.g., in provisions on eligibility for office).

b. Historical Layer: Founding‑Era Meaning of “the People”

Although the majority says current precedent does not strictly require historical analysis at Step One, it nevertheless undertakes such an inquiry to confirm its textual conclusion.

Key points from the majority’s historical discussion:

Pre‑immigration‑law context: At the founding, there was no comprehensive federal immigration regime. The modern distinction between “legal” and “illegal” presence did not exist. Early immigration law focused on naturalization (who could become a citizen), not on entry control.
Blackstone and Madison:
- Blackstone stated that “alien[s]” residing in the territory were entitled to the protection of the sovereign, and spoke of “the people” as including both “aliens and natural‑born subjects,” albeit with different bundles of rights.
- Madison explained that although aliens were not “parties” to the Constitution in the same way citizens were, they owed “temporary obedience” and in return were “entitled . . . to [the laws’] protection and advantage.”
Dictionary definitions: Early American and English dictionaries defined “people” as the “body of persons who compose a community, town, city, or nation,” suggesting that inclusion turned on connection to the community rather than citizenship status.
Voting and political participation:
- The concurrence argues that “the people” must have meant “citizens” because only citizens could vote or consent to government.
- The majority counters with historical research showing that noncitizens did vote in many colonies and early states. Eleven of the thirteen colonies permitted noncitizens to vote, and noncitizen voting was “firmly established” at the time of the Revolution.
- Thus, “the people” in founding‑era political discourse included a set broader than formal citizens, at least when defined by actual participation and loyalty rather than formal legal status.

Synthesizing all this, the majority concludes that:

“‘the people’ encompassed those individuals who voluntarily came to this country, consenting to be governed by the Constitution and its laws, and in turn, received some—but not all—of the Constitution’s protections.”

On the facts of this case, Escobar‑Temal’s substantial connections (long‑term residence, work history, family ties, and lack of criminal convictions) suffice to make him a member of “the people” protected by the Second Amendment.

2. Step Two: Historical Tradition Justifying Disarmament of the Unregulable

Once coverage is established, the question becomes whether § 922(g)(5)(A) is consistent with historical practice. Importantly, the majority emphasizes that its task is not to decide whether unlawfully present aliens lie outside “the people,” but whether disarming them is a justified infringement of the right they otherwise hold.

a. Historical Survey of Disarmament Practices

The majority traces a line from:

The English Bill of Rights of 1689, which gave “subjects which are Protestants” the right to have arms—excluding both non‑subjects and religious “out‑groups” (e.g., Catholics);
Colonial laws disarming Native Americans, including statutes forbidding sale or lending of guns and ammunition to them, justified not only by actual violence but also by fears that weapons given to friendly tribes might reach enemy tribes beyond colonial control;
Laws disarming those suspected of disloyalty, such as Catholics (“papists”), seditious speakers, and those refusing to take loyalty oaths to the Crown or, later, to the revolutionary state (e.g., the Virginia disarmament of “papists” and the Pennsylvania Test Act disarming those who declined an oath to the new Commonwealth); and
Post‑Revolutionary measures (e.g., Pennsylvania’s Test Act) that tied gun ownership and other political rights to formal expressions of allegiance, regardless of individual violence or peaceable conduct (Quakers who refused to swear oaths lost arms rights despite not being criminal or violent).

From this material, the majority identifies two distinct but overlapping historical rationales for class‑based disarmament:

Dangerousness‑based – groups deemed likely to engage in violence (e.g., actively hostile tribes or political enemies actively opposing the revolution).
Relationship‑based – groups that might or might not be individually dangerous but that stood outside the effective regulatory reach of the sovereign because of divided or unknown allegiance (e.g., those who refused loyalty oaths; Native American tribes beyond robust colonial jurisdiction).

The majority’s key move is to elevate the second rationale—relationship and regulability—to equal doctrinal status with dangerousness. This is the bridge from 18th‑century loyalty laws to a 20th‑century immigration‑status gun restriction.

b. Applying Historical Analogy Under Bruen and Rahimi

Under Bruen and Rahimi, courts look for “relevantly similar” regulations, comparing:

How the law burdens the right to armed self‑defense; and
Why that burden is imposed (its justification).

The majority emphasizes:

§ 922(g)(5)(A) does not disarm all noncitizens; it targets only those “illegally or unlawfully” in the U.S.
In the modern era, lawful gun possession is embedded in a dense regulatory system:
- Background checks;
- In‑person purchase requirements;
- Record‑keeping rules; and
- Interstate transfer limits.
Congress’s express purposes in enacting § 922 included “keep[ing] firearms out of the hands of those not legally entitled to possess them” and combating crime made easier by anonymous firearms acquisition.

The opinion then draws on other circuits’ pre‑Bruen reasoning (e.g., Huitron‑Guizar and Meza‑Rodriguez) to note that unlawfully present aliens:

Exist “largely outside the formal system of registration, employment, and identification”;
Have strong incentives to use false identification and evade detection; and
Are thus harder for the government to “keep tabs on” within the regulatory framework.

Even if such persons are not more violent than citizens as a statistical matter—and the majority accepts social science suggesting they may actually be less involved in crime—this “unregulable” status makes their armed presence more problematic for the regulatory scheme.

Thus, just as the Founders disarmed some groups not because of demonstrated violence, but because of their tenuous or divided relationships with the sovereign, Congress may disarm persons whose unlawful presence places them outside the modern regulatory relationship between individual and state. That parallel is, in the majority’s view, a sufficiently “relevantly similar” historical analogue to sustain § 922(g)(5)(A).

c. Facial vs. As‑Applied Analysis

For the facial challenge, the court invokes Salerno’s standard, under which a facial attack succeeds only if “no set of circumstances exists under which the Act would be valid.” The majority reasons that:

At least some unlawfully present aliens (e.g., recent entrants with no substantial ties, persons actively evading law enforcement, etc.) clearly lack a regulable relationship to the government; and
Founding‑era history supports disarming such persons.

Given those valid applications, the statute cannot be invalid on its face. For the as‑applied challenge, the court rejects the idea (drawn from Williams) that Escobar‑Temal must be allowed to show he is personally non‑dangerous, because:

The statute’s constitutionally relevant justification here is not dangerousness but legal status.
That legal status—being unlawfully present—by definition means he lacks the kind of formal government‑individual relationship on which the historical analogues turn.

Thus, even if Escobar‑Temal is in fact peaceable, the historical rationale applies to him as much as to any other unlawfully present alien. The statute is constitutional as applied.

C. Judge Thapar’s Critique and Alternate Framework

1. Text and Structure: “The People” as Citizens

Judge Thapar’s separate opinion is primarily an extensive originalist construction of “the people,” drawing on:

The Preamble (“We the People of the United States . . . do ordain and establish this Constitution”);
The Ninth and Tenth Amendments (rights and powers “retained by the people”); and
Founding‑era political theory and practice (Locke, Montesquieu, Rousseau, the Federalist and Anti‑Federalist Papers).

He argues:

“The people” is a term of art denoting the collective body of citizens who formed and continue to legitimate the government through consent.
The repeated use of the phrase in contexts involving political rights (ratification, voting, petitioning, altering government) shows it meant “members of the political community,” not everyone physically present.
The founders drew a clear line between “citizens” and “aliens,” the latter being subjects of foreign sovereigns who did not participate in American self‑government and were not inherently entitled to its political rights.

On this view, the Second Amendment right is a political right of citizens, akin to the right to petition and assemble. Illegal aliens, who by definition violated U.S. immigration laws to enter or remain, are outside that community and may not claim its political rights.

2. History and Caselaw on Aliens’ Rights

Judge Thapar also surveys:

Early state constitutions and caselaw that equate “the people” with “citizens” when describing the right to bear arms and other political rights.
Supreme Court decisions on citizenship and political community, including:
- Cruikshank (citizens as members of the political community);
- Sugarman, Cabell, Ambach, Foley (states may exclude aliens from core political functions as part of “self‑definition” of the political community);
- Eisentrager, Harisiades, Mathews v. Diaz (aliens hold an “ascending scale of rights” that never fully matches citizens’ rights; illegal aliens in particular cannot claim equal rights).

He notes that:

Supreme Court Second Amendment cases consistently refer to the right as that of “citizens,” “Americans,” or “ordinary, law‑abiding citizens.”
First and Fourth Amendment case law has never clearly held that illegal aliens hold those “people”‑based rights; instead, courts have often upheld restrictions or deportations that would be unconstitutional as to citizens (e.g., deporting aliens for their political views or associations despite asserted First Amendment claims).

In his view, these strands reinforce that “the people” are citizens. He criticizes the majority for:

Assuming that tentative or context‑specific applications of the First or Fourth Amendments to some aliens necessarily imply Second Amendment rights for illegal aliens;
Ignoring the Preamble and the Ninth/Tenth Amendments, where “the people” unmistakably refers to the ratifying citizenry; and
Reading Heller’s reference to “all members of the political community” as if “political community” included illegal aliens, contrary to other Supreme Court cases defining citizens as those who comprise the political community.

3. Critique of the “Sufficient Connections” Test

Judge Thapar sharply criticizes the majority’s adoption of Verdugo‑Urquidez’s “sufficient connections” test for defining membership in “the people”:

He notes that Verdugo‑Urquidez itself cautioned that its “textual exegesis” was not conclusive and that it did not decide illegal aliens’ rights.
He emphasizes that Heller subsequently refined the concept by speaking of “members of the political community,” which, paired with longstanding precedent about aliens, should be read as referring to citizens.
He warns that a “connections” test is inherently subjective and under‑specified:
- What length of residence suffices?
- Does marriage or parenthood carry special weight?
- How should criminal history factor in?
He argues that such judicial line‑drawing usurps Congress’s and the Executive’s exclusive role in determining which aliens may become part of the American polity (through statutes like the Immigration and Nationality Act and mechanisms like DACA).

He is especially concerned that the majority’s approach could lead to uneven and morally tinged judgments—e.g., affording constitutional rights to a long‑resident undocumented professional but not to a recent arrival with similar ties but less education, or vice versa.

D. Likely Impact and Significance

1. On Second Amendment Litigation Involving Noncitizens

United States v. Escobar‑Temal firmly establishes, within the Sixth Circuit:

That “the people” in the Second Amendment includes at least some unlawfully present noncitizens with substantial ties to the United States; and
That § 922(g)(5)(A) nevertheless remains constitutional both facially and as applied, due to the historically rooted power to disarm those lacking a regulable relationship to the sovereign.

This has several concrete implications:

Defendants in the Sixth Circuit who are unlawfully present can invoke the Second Amendment but will almost certainly lose challenges to § 922(g)(5)(A) unless the statute is applied in some highly atypical way.
Courts may need, in closer cases, to engage in fact‑specific “sufficient connections” inquiries to determine whether an unlawfully present alien is part of “the people.” Escobar‑Temal himself offers a fairly clear case; future cases at the margins (shorter residence; no family; sporadic work) may be more difficult.
The opinion signals that other firearms restrictions that target groups defined by status (rather than criminal conviction) could be upheld if the Government can analogize them to founding‑era disarmament tied to allegiance or regulability, not just to dangerousness.

2. On the Meaning of “the People” Across the Bill of Rights

The majority’s analysis is explicitly cross‑Amendment. It will likely be cited not just in Second Amendment cases, but in:

First Amendment disputes over whether unlawfully present noncitizens may claim rights to assemble, petition, or speak in certain contexts; and
Fourth Amendment cases involving searches and seizures of premises or property of unlawfully present individuals within the United States.

Judge Thapar’s opinion likewise supplies a detailed template for litigants who want to argue the opposite—that “the people” in all such contexts must be limited to citizens or, at minimum, to lawfully present members of the political community. The split within a single circuit panel underscores that this is an unresolved and contested area ripe for en banc or Supreme Court review.

3. On the Circuit Split and Potential Supreme Court Review

Escobar‑Temal deepens the existing circuit split over § 922(g)(5)(A) and over the meaning of “the people”:

Several circuits (4th, 5th, 8th) exclude illegal aliens from “the people” altogether.
Several others assume possible inclusion but uphold § 922(g)(5)(A) under historical‑tradition analysis.
The Sixth Circuit is now the first to squarely hold that an unlawfully present person like Escobar‑Temal is within “the people,” yet still uphold § 922(g)(5)(A) as constitutional.

Given:

The constitutional importance of defining “the people”; and
The practical stakes regarding the large population of unlawfully present aliens;

this conflict is a strong candidate for eventual Supreme Court resolution, particularly after the Court’s recent interest in both Second Amendment doctrine (Heller, McDonald, Bruen, Rahimi) and aliens’ rights (in other contexts).

4. Conceptual Expansion: Dangerousness vs. Regulability

Substantively, the majority’s recognition of regulability as a historical analogue to dangerousness may influence future firearms jurisprudence. It suggests that:

Disarmament can be justified not only when a group is empirically more prone to violence, but also when the group’s legal or political status makes enforcement of the firearms regime unusually difficult or uncertain.
Courts will need to scrutinize legislative rationales carefully to ensure that “unregulable” is not used as a pretext for discriminatory disarmament (something the opinion itself acknowledges as a risk, given the racially and religiously invidious nature of many historical disarmament laws).

This line of reasoning could surface in challenges involving, for example:

Persons in transient or extra‑territorial settings;
Individuals lacking fixed identification or residence; or
Other status‑based categories where the government claims it cannot apply its regulatory system effectively.

V. Complex Concepts Simplified

1. “The People” vs. “Persons”

The Constitution uses several different terms when talking about rights:

“The people” – Used in the First, Second, Fourth, Ninth, and Tenth Amendments. Traditionally read as referring to the collective body of Americans who form the political community (citizens, and possibly some noncitizens with substantial ties).
“Persons” – Used in the Fifth and Fourteenth Amendments (“No person shall . . . be deprived of life, liberty, or property, without due process of law”). This broader term clearly covers citizens and noncitizens, including unlawfully present aliens.

Escobar‑Temal turns on whether noncitizens can be part of “the people” (a potentially narrower term than “persons”) for Second Amendment purposes. The majority says yes, with limitations; Judge Thapar says no—only citizens qualify.

2. Bruen’s Two‑Step Test

Under Bruen:

Coverage: Does the text of the Second Amendment, as originally understood, cover the person and the conduct at issue?
- If not (e.g., if the person is not part of “the people”), the law stands and no historical analysis is required.
Historical justification: If coverage exists, can the Government point to a sufficiently similar historical tradition of restricting that right?
- Courts do not demand identical historical laws; they look for analogues that are “relevantly similar” in how and why they restrict arms.

The majority in Escobar‑Temal goes through both steps. Judge Thapar would stop at Step One.

3. Facial vs. As‑Applied Challenges

Facial challenge: Claims the law is unconstitutional in all its applications. Very hard to win; the challenger must show there is no situation in which the law would be valid.
As‑applied challenge: Concedes the law may be valid generally but argues that the law is unconstitutional given the particular facts of the challenger’s case.

Escobar‑Temal brought both types of challenges. The court rejected both:

Facially, because history supports disarming at least some unlawfully present aliens; and
As applied, because Escobar‑Temal’s unlawful status triggers the same relationship‑based rationale as that applied to others in his class.

4. “Sufficient Connections” to the National Community

This concept, drawn from Verdugo‑Urquidez, asks whether an individual noncitizen has lived and acted in the United States in ways that make him akin to a member of the national community, for purposes of claiming certain constitutional rights. Examples of “connections” include:

Voluntary physical presence in the U.S. for significant time;
Regular work or economic participation;
Family ties, especially to U.S. citizens;
Compliance with laws, absence of criminal convictions.

The majority uses this test to decide that Escobar‑Temal is part of “the people.” Judge Thapar criticizes the test as too vague and subjective to guide courts consistently.

5. “Regulable Relationship” with the Sovereign

A “regulable relationship” means a legal and practical connection to the government such that:

The government knows who you are (e.g., through lawful status, registration, identification); and
It can enforce laws and regulations against you in a predictable way.

Historically, such relationships were often enforced through:

Loyalty oaths;
Citizenship or subject status; or
Formal allegiance to the state.

In the modern context, the majority treats lawful immigration status as a proxy for such a relationship, and unlawful status as evidence of its absence. Under this theory, the government may disarm those who lack this relationship without violating the Second Amendment.

VI. Conclusion

United States v. Escobar‑Temal is a consequential decision on two fronts. First, it is the most explicit appellate holding to date that at least some unlawfully present aliens are part of “the people” protected by the Second Amendment, based on substantial connections to the national community. Second, it clarifies that, even for those individuals, Congress may constitutionally disarm them when their immigration status places them outside a regulable relationship with the sovereign—a rationale the majority deems firmly rooted in the history of disarming those outside the government’s effective control or allegiance.

Judge Thapar’s separate opinion offers a sharply different vision: “the people” as citizens only, with illegal aliens entirely outside the Second Amendment’s coverage. That disagreement—within a single panel—highlights how unsettled the meaning of “the people” remains, even after Heller, McDonald, and Bruen.

For now, within the Sixth Circuit:

Unlawfully present individuals with substantial ties can claim Second Amendment coverage; but
They cannot use that status to invalidate § 922(g)(5)(A), either facially or as applied.

Nationally, Escobar‑Temal sharpens the circuit split over both the scope of “the people” and the constitutionality of disarming unlawfully present aliens. Given the Supreme Court’s recent focus on both gun rights and the status of noncitizens, this case—and the competing methodologies it showcases—appears to be a strong candidate to shape the next generation of Second Amendment jurisprudence.