CBA Record March-April 2026

THE YOUNG LAWYERS SECTION

“Of the People”— But Which People? Courts Weigh Immigration Status in Second Amendment and Other Constitutional Claims By Jason T. Long

T he Second Amendment of the U.S. Constitution protects “the right of the people to keep and bear Arms.” Although this language appears simple, recent litigation applying the text, history, and tradition test established in New York State Rifle & Pistol Association v. Bruen , 597 U.S. 1 (2022), highlights a foundational question that the Constitution itself does not explicitly answer: Who exactly are “the people” to whom the Second Amendment applies? Following Bruen , numerous criminal defendants with gun possession charges or con victions challenged the statutes underlying their criminal proceedings on Second Amend ment grounds. These challenges included attacks on the constitutionality of 18 U.S.C. § 922, which limits the possession and sale of firearms in interstate commerce. Review ing courts quickly struck down most of these challenges. However, a novel theory has emerged from courts reviewing Second Amendment challenges to 18 U.S.C. § 922(g) (5), which criminalizes possession of a firearm by “an alien” who “is illegally or unlaw fully in the United States.” In reviewing challenges to Section 922(g)(5), certain federal district and circuit courts have embraced a new theory to support the constitutionality of the statute’s criminaliza tion of firearm possession, namely, that people classified as illegal aliens and other undoc umented persons are not members “of the people” to which the Second Amendment was intended to apply. As a result, these courts contend that the Second Amendment does not constitutionally protect firearm ownership by undocumented noncitizens. If correct, this view could have major ramifications on the entire constitutional order. References to “the people” also appear within the First, Second, Fourth, Ninth, and Tenth Amendments. The contextual canon of Presumption of Consistent Usage could therefore render these amendments inapplicable to undocumented noncitizens as well. Whether immigration status alone places an individual outside the Constitution’s

protection is poised to become one of the most contested and consequential ques tions in post- Bruen firearms litigation and, by extension, constitutional rights for undocumented noncitizens. “Of the People” as a Term of Art The United States Supreme Court has repeatedly described “of the people” as a term of art in the Constitution. Yet, it has never definitively resolved whether that phrase extends to all persons within the United States, or only to citizens. Nevertheless, in United States v. Verdugo Urquidez , the Supreme Court held that the phrase “of the people” found in the Fourth Amendment “refer[ed] to a class of persons who are part of a national com munity or who have otherwise developed sufficient connection with this country to be considered part of that community.” 494 U.S. 259, 265 (1990). In applying this reasoning in the Second Amendment context, the Sev enth Circuit held that the phrase “of the

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