A federal judge in Kentucky proposed in a judicial opinion this week that the Bill of Rights does not protect more than 50 million immigrants in the United States. Judge Amul Thapar, who serves on the Sixth Circuit Court of Appeals, argued that originalism required him to exclude all noncitizens from the Constitution’s protections.

“Originally understood, neither the First nor Fourth Amendment clearly extends to noncitizens,” he wrote in a concurring and dissenting opinion on Monday. “And, properly read, the Supreme Court’s guidance on these amendments is far from consistent, in part due to the drift of First and Fourth Amendment caselaw from the original public meaning of the text.”

Thapar’s opinion is a train wreck, to put it mildly. Though the case only concerned the scope of the Second Amendment as it applies to undocumented immigrants, the Trump appointee goes far beyond the facts and briefs to forcefully argue that millions of people living lawfully in the United States can be silenced and seized at the government’s whims. To build his case, Thapar commits a series of profound moral and legal errors that disprove his argument altogether.

The case at hand, United States v. Escobar-Temal, involves a Guatemalan man who illegally crossed the U.S. border some time before 2012. According to court documents, he has lived in the Nashville area for the past 13 years, where he married a woman and had two children with her. Police searched his home in 2022 after his wife alleged that he had abused their daughter and found three guns that Escobar-Temal owned.

Federal law makes it a felony offense for people unlawfully present inside the United States to possess a firearm, and federal prosecutors charged him accordingly. Escobar-Temal then challenged the constitutionality of his indictment, claiming that provision in question violates the Second Amendment. This is unsurprising: Escobar-Temal’s challenge is one of dozens, if not hundreds, of legal challenges to existing gun regulations that have arisen since the Supreme Court rewrote its test for Second Amendment cases in 2022.

At issue in this particular case is who counts as “the people” for Second Amendment purposes. Escobar-Temal argued that he fell within that category and pointed to two grounds to justify this interpretation. First, he argued, the Constitution’s Framers saw no distinction between the Bill of Rights’ protections for citizens and for “aliens” present inside the United States. Escobar-Temal pointed to language from the Framers to support that view, but we’ll come back to that later.

Additionally, Escobar-Temal argued that Supreme Court precedent supports his interpretation. He pointed to a 1990 case, United States v. Verdugo-Urquidez, where the justices concluded that foreign nationals could invoke the Fourth Amendment’s protections against unreasonable searches and seizures. “The people,” the court reasoned, includes both those who are U.S. citizens and those who have “developed sufficient connection with this country to be considered part of [the national] community.” The Justice Department and the federal district court disagreed.

The Sixth Circuit took a more nuancd view than Escobar-Temal. Judge Stranch, writing for the panel, concluded that the government’s “ample historical evidence” did not conclusively show that “unlawfully present individuals are excluded from ‘the people.’” She pointed to some of the precedents invoked by Escobar-Temal, as well as related rulings that suggested unlawfully present immigrants might enjoy some measure of the Bill of Rights’ protection.

Ultimately, however, Stranch rejected the defendant’s challenge on Second Amendment grounds. The Supreme Court’s history-and-tradition test for gun restrictions, she noted, allows them to survive if they are part of a long-standing historical tradition. Stranch cited numerous examples where colonial and post-independence legislatures disarmed entire groups of people presumed to be dangerous and outside the normal “political community,” such as Catholics or Native Americans. “While many individual liberties were preserved for resident aliens, the right to bear arms was restricted to those who had a special relationship with the United States government,” she concluded.

I doubt any side in the gun control debate would disagree with the outcome of this case. Even those who favor a broad reading of the Second Amendment appear to have their limits: No gun rights groups filed friend-of-the-court briefs to side with Escobar-Temal, unlike in similar cases. Gun control advocates would also likely find this debate to be pointless since they generally don’t believe the Second Amendment protects an individual right to bear arms at all, contra the Supreme Court’s 2008 ruling in District of Columbia v. Heller.

While Thapar joined the other two judges in their ultimate conclusion—that Escobar-Temal’s challenge had failed—he categorically rejected the notion that an “illegal alien” might be entitled to Second Amendment rights. “Plain and simple, ‘the people’ refers to the American citizens who consented to the government of the United States,” he wrote in a separate opinion. “Since illegal aliens aren’t citizens, they can’t assert ‘the right of the people to keep and bear arms.’”

From there, Thapar argued that his narrow reading of “the people” to only mean citizens extended to the entire Bill of Rights. This would be a seismic shift in the American constitutional landscape. If Thapar’s opinion became the law of the land, it would instantly strip the rights from roughly 52 million people currently living in the United States, most of whom are lawfully present in the country. Roughly one out of every seven people in the country would lose their rights to free speech, to not face unreasonable searches and seizures, and more. It would immediately create an underclass of millions of people who could be lawfully subjected to official abuses without any opportunity for relief or recourse.

To justify that reprehensible outcome, Thapar engages in some interpretive bait and switch. He leans heavily on precedents that suggest that not every constitutional right applies with equal force to noncitizens. Most notably, he pointed to rulings that upheld campaign finance restrictions against noncitizens. As then-Judge Brett Kavanaugh noted in a 2011 opinion while serving on the D.C. Circuit Court of Appeals, for example, Congress “may exclude foreign citizens from activities that are part of the democratic self-government of the United States.”

“The majority errs in assuming that modern caselaw guarantees First Amendment rights to noncitizens, let alone illegal aliens,” Thapar claimed. “The Supreme........

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