The constitutional phrase "the people" has emerged as a critical battleground in Second Amendment litigation, affecting millions of Americans whose gun rights hang in the balance. At issue is whether convicted felons stripped of voting rights, 18-to-20-year-olds denied handgun purchases, and undocumented immigrants can claim constitutional protection. The disputes have created a patchwork of conflicting rulings across federal circuits, with some courts embracing broad definitions while others restrict "the people" to law-abiding adult citizens.
In District of Columbia v. Heller, the Supreme Court established that "the people" in the Second Amendment "unambiguably refers to all members of the political community," citing the 1990 Fourth Amendment case United States v. Verdugo-Urquidez. Justice Scalia's majority opinion noted that "the people" appears in six constitutional provisions and creates "a strong presumption that the Second Amendment right is exercised individually and belongs to all Americans." But the Court left undefined what constitutes membership in the "political community," creating the current interpretive chaos.
The most contentious battles involve convicted felons, who are categorically banned from gun ownership under 18 U.S.C. § 922. The government has argued that felons "forfeited their membership in the political community" through criminal acts, pointing to their loss of voting rights and jury service. But the 3rd Circuit sharply rejected this theory in 2024's Garland v. Range, declaring that "felons are not categorically barred" from First and Fourth Amendment protections "because of their status."
Then-Judge Amy Coney Barrett, writing in dissent in the 7th Circuit's 2019 Kanter v. Barr decision, similarly concluded that "neither felons nor the mentally ill are categorically excluded from our national community." Barrett warned that accepting the government's position would mean such people "could be in one day and out the next" as a matter of "legislative grace," undermining the constitutional nature of the right.
Age-based restrictions have produced their own circuit split, with the 8th and 10th Circuits rejecting arguments that 18-to-20-year-olds fall outside "the people." In 2024's Worth v. Jacobson, the 8th Circuit noted that Minnesota had not "overcome the 'strong presumption'" that the Second Amendment "applies to 'all Americans.'" The court analogized to Heller's rejection of limiting "arms" to Founding-era weapons, explaining that while the Constitution is "fixed according to the understandings of those who ratified it," it "can, and must, apply to circumstances beyond those the Founders specifically anticipated."
Immigration status has created the starkest divide among circuits. The 5th Circuit ruled in 2024's United States v. Medina-Cantu that undocumented immigrants are not "law-abiding, responsible citizens or members of the political community," emphasizing Heller's reference to rights belonging to "all Americans." But the 6th Circuit reached the opposite conclusion in 2025's United States v. Escobar-Temal, finding that some undocumented immigrants can develop "sufficient connections" to join "the people" through long-term residence, steady employment, and family ties.
These definitional disputes trace back to Verdugo-Urquidez, a Fourth Amendment case involving a Mexican citizen whose property was searched by DEA agents without a U.S. warrant. The Court defined "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." That language from a drug case now governs gun rights across America, though its application remains hotly contested.
The Supreme Court's silence on these questions has left constitutional rights subject to geographic lottery and legislative whim. With deep circuit splits on felons, minors, and immigrants, practitioners expect the Court will eventually need to clarify who exactly qualifies as "the people" under the Second Amendment. Until then, the boundaries of this fundamental right remain dangerously uncertain, affecting millions of Americans whose constitutional status depends on which federal courthouse handles their case.