Second Amendment's 'The People': Courts Grapple with Definition

Why it matters locally: As a state with a strong tradition of firearm ownership, South Dakota residents are directly impacted by federal court decisions that clarify or redefine who is covered by the Second Amendment, particularly concerning restrictions based on age or prior offenses. Given South Dakota's significant population of hunters and outdoor enthusiasts, any changes to firearm access rules based on these definitions could have a considerable effect on the state's citizens.

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The Second Amendment to the U.S. Constitution protects "the right of the people to keep and bear Arms." While the amendment's language regarding militias and the definition of 'arms' have been subjects of legal discussion, a key aspect under scrutiny is the interpretation of "the people." Current legal challenges are testing the boundaries of this definition, particularly concerning felons, minors, and non-citizens. The Supreme Court addressed the definition of "the people" in the 2008 case *District of Columbia v. Heller*, which established an individual's right to own a handgun for self-defense. The court referenced the 1990 case *United States v. Verdugo-Urquidez*, a Fourth Amendment case, stating that “the people” refers to all members of the political community. However, the definition remains contested in lower courts, specifically in cases relating to firearm restrictions. Federal law, under 18 U.S.C. § 922, prohibits convicted felons from possessing firearms. While the government argues that felons forfeit their membership, the 3rd Circuit Court of Appeals disagreed in *Garland v. Range* (2024), citing inconsistencies with First and Fourth Amendment protections for felons. Similarly, then-Judge Amy Coney Barrett expressed concern in *Kanter v. Barr* (2019) about defining "the people" based on legislative grace. Restrictions on firearm possession for those under 21 have also been legally challenged. Minnesota argued in *Worth v. Jacobson* (2024) that individuals under 21 were not part of "the people." The 8th Circuit rejected this, citing that the 26th Amendment set the age of majority at 18. Colorado made a similar argument in *Rocky Mountain Gun Owners v. Polis* (2024), but the 10th Circuit clarified that law-abiding citizens under 21 are included in the definition. The question of whether non-citizens are included has also been litigated. The 5th Circuit, in *United States v. Medina-Cantu* (2024), ruled that non-citizens unlawfully present in the U.S. are not considered part of "the people." However, the 6th Circuit reached a different conclusion in *United States v. Escobar-Temal* (2025), stating that those unlawfully present could be included if they have developed substantial connections with the country. The court considered aspects like length of residence, employment, and having citizen children.