CORRECTED-Trump-appointed judge argues US Constitution's rights do not extend to non-citizens

By Nate Raymond

Dec 16 (Reuters) - A federal appeals court judge who was included on U.S. President Donald Trump's short list of potential Supreme Court nominees during his first term says the U.S. Constitution's protections do not extend to immigrants who entered the U.S. illegally.

U.S. Circuit Judge Amul Thapar, whom Trump appointed to the Cincinnati-based 6th U.S. Circuit Court of Appeals in 2017, laid out his views as he partially dissented from a ruling on Monday upholding a federal law banning immigrants unlawfully present in the United States from possessing firearms.

Thapar concurred with the ultimate result of the decision by the three-judge panel's majority, which held the law was consistent with the nation's historical tradition of gun regulation and did not violate the right to keep and bear arms protected by the U.S. Constitution's Second Amendment.

But Thapar said the majority's judges, both of whom were appointed by Democratic presidents, should have resolved the case on a different ground: That only U.S. citizens are covered by the Second Amendment's "right of the people" to bear arms in the first place.

"Criminal entry into the United States doesn’t entitle illegal aliens to the constitutional rights of Americans," Thapar wrote.

He pointed to the U.S. Constitution's preamble's opening phrase of "We, the People," which he said encapsulates "the radical idea that has propelled the American experiment for over two centuries: popular sovereignty."

He said a proper reading of the U.S. Constitution makes clear "the people" only includes U.S. citizens, and said the nation's founders did not understand the rights contained in the Constitution to extend to noncitizen immigrants, "much less illegally present ones."

Trump included Thapar on a list he released in 2018 of potential nominees to fill any vacancies that opened up on the Supreme Court. The judge, who had previously been a trial court judge in Kentucky, has emerged as a prominent conservative jurist, and he recently authored an admiring book about conservative Supreme Court Justice Clarence Thomas.

The Trump administration had urged the 6th Circuit to reach that same conclusion as Thapar did in the case, which concerned a challenge by Guatemalan citizen Milder Escobar-Temal, a Tennessee resident, to his conviction for unlawfully possessing firearms, which police discovered in his home in 2022.

U.S. Circuit Judge Jane Branstetter Stranch, who wrote the majority opinion, said that U.S. Supreme Court precedent indicated that non-citizens who enter the country unlawfully can still come to enjoy constitutional rights once they develop "substantial connections with this country."

But Thapar argued the country's "historical traditions don't just support the exclusion of illegal aliens — they demand it."

"Properly read, our text, history, and tradition squarely foreclose his claim," he wrote. "They reveal that 'the people' refers to the citizens of the United States who consented to its government. Since illegal aliens are not citizens, they cannot lay claim to the right to bear arms reserved for 'We, the People.'"

He said the framers of the U.S. Constitution and its Bill of Rights, which were ratified in 1791, "sharply distinguished between American citizens and 'aliens,' who were subjects of foreign sovereigns."

Not only do U.S. citizens alone enjoy the Second Amendment's rights, Thapar argued, but neither the First nor Fourth Amendments, which guarantee the right to free speech and protect against unreasonable searches and seizures, as "originally understood" clearly extend to non-citizens either.

The case is U.S. v. Escobar-Temal, 6th U.S. Circuit Court of Appeals, No. 24-5668.

For the United States: Nicholas Goldin of the U.S. Attorney's Office for the Middle District of Tennessee

For Escobar-Temal: Alex Thomason of the Office of the Federal Public Defender