Major breaking news out of the Sixth Circuit. In United States v. Escobar-Temal, No. 24-5668 (6th Cir. Dec. 15, 2025), a three-judge panel unanimously affirmed the § 922(g)(5)(A) conviction of an illegal alien caught with three firearms in his Nashville home — but the panel split sharply on the path to get there. The real story is the 32-page separate opinion by Judge Amul R. Thapar, dissenting in part and concurring in the judgment, laying out in erudite detail why illegal aliens are not part of “the people” protected by the Second Amendment as a matter of constitutional text. That is the holding I have been arguing for on this channel from day one, and Judge Thapar nailed it.
The Facts, and Why Methodology Matters More Than Outcome
Milder Escobar-Temal is a Guatemalan citizen who entered the United States unlawfully and lived in Nashville for more than a decade. In October 2022, police responded to a report that he was sexually abusing his 14-year-old stepdaughter. The search incident to arrest turned up three firearms in his home. The federal government charged him under 18 U.S.C. § 922(g)(5)(A), which criminalizes firearm possession by any “alien… illegally or unlawfully in the United States.” He pled guilty, reserved his appeal, and argued the statute violates the Second Amendment as applied to him.
All three judges said no. He goes to prison. So why does methodology matter? In appellate work, the reasoning controls. The conclusion resolves one case; the methodology guides every lower court for decades — every felon-in-possession case, every § 922(g) subsection. Getting it right is the whole ballgame.
The Majority’s “Substantial Connections” Detour
Judge Jane Stranch, an Obama appointee, wrote the majority opinion, and Judge Stephanie Davis, a Biden appointee to the Sixth Circuit, joined her. They read “the people” to include unlawfully present persons who have developed what Verdugo-Urquidez, 494 U.S. 259, 265 (1990), called “sufficient connection with this country to be considered part of that community.” Escobar-Temal lived here for ten years, so he clears the textual threshold.
Having put him inside “the people,” the majority jumped to Bruen Step 2 and asked whether the government had identified a historical tradition supporting his disarmament. It found one: founding-era analogues like Quakers who refused loyalty oaths were disarmed for lacking a “regulable relationship” to the government. That analogue, the majority said, justifies § 922(g)(5)(A) today.
I will give the majority this: it got to the right defendant-specific outcome. But the textual move is wrong, and the doctrinal consequences ripple out from there.
Judge Thapar’s Step 1 Bombshell
Judge Thapar, a Trump appointee and one of the most influential feeder judges in the country, refused to play along. His separate opinion is, in my view, the definitive judicial statement on what “the people” means in the Second Amendment. He opens with the thesis:
This case begins and ends at Step 1. Plain and simple, “the people” refers to the American citizens who consented to the government of the United States. Since illegal aliens aren’t citizens, they can’t assert “the right of the people to keep and bear arms.” And our historical traditions, constitutional text, and Supreme Court precedent confirm this.
And then he hammers the historical case:
History resolves this case at Bruen’s first step: Illegal aliens are not part of “the people” with Second Amendment rights. From Blackstone to the Federalist Papers to state constitutions, historical evidence reveals that the founders used the term “the people” to refer to citizens.
He walks through the English Declaration of Rights of 1689, Blackstone’s Commentaries, St. George Tucker, Joseph Story’s “palladium of the liberties of a republic” passage, the Federalist Papers, and founding-era state constitutions. When the founders translated the English right to arms — which in England belonged only to subjects, not aliens — into an American constitutional right, they kept the citizen/foreigner line and put it inside the word “people.”
Thapar then turns to the Preamble. The Constitution opens with “We the People,” and that phrase identifies who consented to be governed, and therefore who holds the rights the document secures. He pulls in George Washington’s Farewell Address — jointly drafted with James Madison and Alexander Hamilton — on the “wiles of foreign influence” and the necessity that “we remain one people.” The founders, Thapar writes, “sharply distinguished between American citizens and aliens who were subjects of foreign sovereigns.” That distinction is built into “the people,” not bolted on later by historical tradition.
Step 1 vs. Step 2: Why It Matters Beyond This Case
Here is the doctrinal payoff, and it reaches far past § 922(g)(5)(A). When a court resolves a Second Amendment challenge at Bruen Step 1, it holds the claimant outside the textual scope of the right, and the government never has to produce a historical analogue. Step 2, by contrast, concedes the claimant is inside “the people” and then sustains the law on a historical-tradition match.
The Step 2 path the majority chose hands future litigants a roadmap to argue any analogue is too thin under Rahimi, 602 U.S. 680 (2024). It also imports the “substantial connections” test from Verdugo-Urquidez — a Fourth Amendment extraterritoriality case — into the Second Amendment, where it does not belong. Thapar’s Step 1 route draws a clean textual line and makes the historical-tradition fight unnecessary.
It lines up with Justice Amy Coney Barrett’s dissent in Kanter v. Barr, 919 F.3d 437 (7th Cir. 2019), warning against treating “the people” as something a person rotates in and out of day by day. Either you are a rights-holder under the text, or you are not.
The Bigger Picture
The Supreme Court will almost certainly never need to take up the narrow question of whether illegal aliens enjoy Second Amendment rights, because no court of appeals is going to hold that they do. But a Thapar-style Step 1 ruling matters far beyond the immigration context. It reinforces that the Second Amendment has a textual gatekeeper before the historical-tradition analysis ever begins. That ordering protects the right to keep and bear arms from being eroded by lower courts that find a “tradition” lurking behind every modern gun-control statute they happen to like.
Judge Thapar’s separate opinion in Escobar-Temal is required reading. It is the cleanest articulation I have seen of why citizenship — not “connections,” not residency, not how long you have been here — defines the universe of Second Amendment rights-holders. That is the textually honest answer, and the answer the Supreme Court will land on whenever, if ever, it gets asked.
This article is based on analysis by Professor Mark W. Smith, constitutional attorney and Host of the Four Boxes Diner 2nd Amendment channel. Watch the original video here. This does not constitute legal advice.