A federal judge appointed by President Donald Trump has argued that the U.S. Constitution does not apply to noncitizen immigrants, claiming that the founding principle of “We the people” extends only to American citizens.
Appeals court Judge Amul Thapar, who Trump put on a short list of contenders for a Supreme Court nomination during his first term, argued this week that “the people” refers only to “citizens of the United States who consented to its government.”
Thapar partially agreed with the majority’s ruling to uphold a federal law that blocks immigrants who entered the United States without legal permission from possessing firearms.
But Thapar went further, arguing that the founders did not intend for the Second Amendment — nor the First and Fourth Amendments — to extend to noncitizens, “let alone illegal aliens.”
His dissenting view carries no legal weight, but it was published as the Trump administration looks to the courts for support amid an avalanche of lawsuits against a sweeping anti-immigration agenda that has deported thousands of people while severely limiting who can enter the U.S.
Law enforcement officers across the country are accused of depriving immigrants of their constitutional rights with sweeping arrests and detentions, in violation of the Fourth Amendment, while the Trump administration is attempting to unilaterally redefine who gets to be a citizen by rewriting the 14th Amendment.
The administration also is facing legal challenges from noncitizen scholars who argue the government unlawfully retaliated against them for demonstrating against Israel’s war in Gaza by throwing them in immigration detention centers and threatening them with removal from the country, in violation of their First Amendment rights.
In this case, Guatemalan citizen Milder Escobar-Temal challenged his conviction for unlawfully possessing firearms that police discovered in his home in 2022.
Judge Jane Branstetter Stranch, who wrote the majority opinion for the Sixth Circuit Court of Appeals, argued that the noncitizens who enter the country without legal permission are granted constitutional rights once they develop “substantial connections with this country.”
But Thapar disagreed, writing that “historical traditions don’t just support the exclusion of illegal aliens — they demand it.”
Only U.S. citizens enjoy Second Amendment rights, he argued. The First and Fourth Amendments, which protect the rights to free speech and affirm protections against reasonable searches and seizures, respectively, were also “originally understood” to apply only to citizens, according to Thapar.
“Put simply, only citizens who consented to be governed could claim the rights necessary to govern themselves,” he wrote.
He also questioned the majority’s reasoning that constitutional protections for noncitizens who have “substantial connections with this country,” stating that the courts should “stay out of the moralizing business of judging what makes an American.”
“Why should courts get to pick and choose what connections make someone American?” Thapar wrote as he defended which constitutional rights to deprive noncitizens.
“This is a startling read of history [and] precedent,” according to Pepperdine Law professor Jake Charles. “It's hard not to read this in the context of what Trump is doing. Judge Thapar is, I’m sure, auditioning for the next open Supreme Court seat. … It’s a really alarming project of trying to decimate the rights of noncitizens at the precise moment when the administration is punishing speech [and] subjecting noncitizens to unreasonable searches and seizures.”
Thapar was among 10 finalists for consideration for the Supreme Court during Trump’s first term. From that list, the president nominated Neil Gorsuch, who was the first of Trump’s three appointments to the nation’s highest court, which has a firm six-member conservative majority with three liberal justices.
Thapar also served on an 18-member “judicial advisory board” for the Heritage Foundation’s clause-by-clause analysis of the Constitution, serving as a legal manifesto to accompany the right-wing think-tank’s Project 2025 blueprint to support the Trump administration’s second term.
Jamelle Bouie, a columnist for The New York Times, called Thapar’s latest dissent “historical and legal fan fiction” designed to “vindicate Trump's lawlessness.”
Trump’s allies celebrated Thapar’s writing, with legal ally Mike Davis stating that “We the People” means “the sovereign citizens.”
“Illegal aliens do not have equal constitutional rights. We never gave it to them. We have the sovereign power,” he wrote. “Judges cannot steal it.”
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