CBA Record March-April 2026

THE YOUNG LAWYERS SECTION

people” in the Second and Fourth Amendments should be read consistently, and that there is “no principled way to carve out the Second Amendment and say that the undocumented (or maybe all noncitizens) are excluded.” United States v. Meza-Rodri guez , 798 F.3d 664, 672 (7th Cir. 2015). However, an opinion authored by Judge Brennan in summer 2025 shakes this foun dation. In United States v. Carbajal-Flores , Judge Brennan noted that the position of the Seventh Circuit is an “outlier among our fellow circuits” and that the legal structure of Meza-Rodri guez has “no doubt [been] abrogated by the intervening prec edent [such as Bruen and Rahimi ].” 143 F.4th 877, 882 (7th Cir. 2025). Although the majority chose not to re-address the issue of whether undocumented noncitizens are part of “the people,” this opinion signals that at least some Seventh Circuit judges are open to revisiting the issue of constitutional protections for non citizens. Should the Seventh Circuit choose to revisit its decision of Meza-Rodriguez , it will likely wade into an evolving circuit split among several viewpoints. The Sixth Circuit has explicitly held that the Second Amendment’s reference to the people “encom passes unlawfully present individuals with sufficient connections to the national community.” United States v. Escobar-Temal , 161 F.4th 969 (6th Cir. 2025). Other circuits have concluded that undocumented persons are categorically excluded from “the people.” See United States v. Carpio-Leon , 701 F.3d 974, 979 (4th Cir. 2012); United States v. Portillo-Munoz , 643 F.3d 437, 442 (5th Cir. 2011); United States v. Sitladeen , 64 F.4th 978, 987 (8th Cir. 2023); United States v. Jimenez-Shilon , 34 F.4th 1042, 1050 (11th Cir. 2022) (“con sistent with the Second Amendment’s text and history, [illegal aliens] do not enjoy the right to keep and bear arms”). A third group of circuits have upheld the constitutionality of 18 U.S.C. 922(g)(5) without ruling on whether illegal aliens fall within the scope of the Second Amendment’s protections. See United States v. Perez , 6 F.4th 448, 453 (2d Cir. 2021); United States v. Torres , 911 F.3d 1253, 1261 (9th Cir. 2019); United States v. Duque-Ramirez , 161 F.4th 1237 (10th Cir. 2025). Therefore, until the Supreme Court steps into the fray and clarifies the extent of the term “of the people,” lower courts will continue to treat those three words as a threshold in determining not merely the scope of a constitutional right, but who may claim it at all. “The People” as a Political vs. National Community Even with the U.S. Supreme Court’s determination that the phrase “of the people” is a term of art, the enduring confusion behind whether undocumented persons are part “of the people” covered by the Constitution is exacerbated by an underlying defi nitional disagreement: whether this term refers to members of the political community or whether the term refers to members of the national community. The political definition holds that “the people” derives its existence from the rights of citizens to

participate in the political process, such as the right to vote and hold office, while the national definition holds that “the people” refers to anyone who is part of the community by choosing to live within the United States and building sufficient connections to it. Both definitions are facially valid interpretations regarding “of the people,” due to divergent categories of undocumented non citizens in federal caselaw. It is a well-established principle that “Congress may make rules as to aliens that would be unacceptable if applied to citizens.” Demore v. Kim , 538 U.S. 510, 522 (2003). Moreover, Supreme Court precedent has held that an individual’s mere presence in the United States is insufficient to confer First, Second, and Fourth Amendment rights upon unlawful entry. See United States ex rel. Turner v. Williams , 194 U.S. 279, 292 (1904). These cases seem to support the political community defini tion that “the people” relates directly to the rights of citizen ship. However, the Supreme Court has extended protections to undocumented persons when they have developed a sufficient connection with the United States to be considered part of the community. Verdugo-Urquidez , 494 U.S. at 260. This definition has also been embraced by the Court within the Second Amend ment context in District of Columbia v. Heller . 554 U.S. 570, 580 (2008). This second standard seems to embrace the national definition regarding “of the people.” Given that both definitions remain textually feasible and unsettled, the preferred definition of courts when facing cases with undocumented persons will potentially be determined by effective legal representation and judicial interpretation. Future Implications While Illinois practitioners with clients who are noncitizens can continue to rely on the Seventh Circuit’s rule from Meza-Rodriguez to apply constitutional protections, they should remain cognizant of the evolving doctrines in Second Amendment litigation. The divergent Second Amendment cases underscore that the interpre tation of constitutional term “of the people” remains unsettled. Courts embracing the political definition of the phrase have func tionally integrated immigration status as a threshold for determin ing the extent of an individual’s constitutional protection. Future cases addressing constitutional claims from undocu mented noncitizens will be forced to decide whether constitu tional rights turn on presence, allegiance, or legal status. Their answers will have implications well beyond the Second Amend ment, touching on how courts understand the phrase “of the people” throughout the Bill of Rights.

Jason T. Long has worked as a judicial law clerk at both the state and federal levels and is also an adjunct lecturer in business law at West Virginia University, John Chambers College of Business and Economics.

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