Gorsuch and the Second Amendment

  • 3 February 2017
  • NormanL
Gorsuch and the Second Amendment

One of the key issues facing any Supreme Court justice is the Second Amendment. The Court, with the late Antonin Scalia leading the way, made significant progress is affirming the right to bear arms as an individual right. President Trump's Supreme Court choice, Judge Neil Gorsuch, seems to be ready to pick up where Scalia left off.

Gorsuch has the NRA's backing, with the group calling the Judge "has supported the individual right to self-defense.  Specifically, he wrote in an opinion that 'the Second Amendment protects an individual’s right to own firearms and may not be infringed lightly.'"

Gorsuch's judicial record has raised some questions, which get a thorough answering here:

Some in the gun community seem to be leaning in this direction because of a case in Judge Gorsuch’s recent past: U.S. v. Rodriguez, 739 F.3d 481 (10th Ct. App. 2013). In my view, however, this 3–0 opinion (which Gorsuch did not write, but in which he concurred) is entirely consistent with a robust reading of the Second Amendment. Rodriguez is perhaps best described as a Fourth Amendment case (right against unreasonable search) with Second Amendment overtones, much like the recent Robinson decision out of the Fourth Circuit.

In both cases, the police lawfully — that is, with reasonable suspicion that a crime was being committed — stopped an armed person and disarmed him during the stop for purposes of safety. In both cases the person stopped was found to be in unlawful possession of a gun and was ultimately arrested.

In Rodriguez, the Court of Appeals unanimously, with Judge Gorsuch concurring, found the police seizure of the stopped person’s gun for purposes of safety to have been lawful under the Fourth Amendment, and not an infringement of the Second Amendment.

Some in the gun community have characterized Rodriguez and Robinson as holding that a person who exercises his Second Amendment rights is now required to sacrifice his Fourth Amendment right against unreasonable search. I disagree with that view. While we must always be vigilant against substantive infringement of our Second Amendment rights — and we know that those intent on such infringement will never cease their attacks — we also need to acknowledge that all constitutional rights are subject to reasonable limitation, particularly when that reasonable limitation is transient.

Gorsuch also has stood up for the Second Amendment when it wasn't the main issue in a case before his court:

Gorsuch has supported the Second Amendment in his case readings — though some of the opinions in which he has asserted that support only tangentially involve gun rights.

In the 2012 case United States v. Games-Perez, which involved a question over how to read a federal law that bars felons from possessing guns, Gorsuch argued that the felon needed to know not only that he possessed the gun but also that he was a felon for the criminal law to apply. His dissent included a defense of the Second Amendment — “gun possession is often lawful and sometimes even protected as a matter of constitutional right” — but also applied a narrow reading of the law, even when it gave prosecutors a higher bar to clear.

Otherwise, the felon convicted of possessing a firearm “might very well be wrongfully imprisoned,” he wrote.

The Senate will, eventually, get around to conducting its hearings on Gorsuch, and we can expect a lot of questions to be asked about guns and gun rights. If Gorsuch follows past court nominees, he will dance around hypothetical questions about future (or pending) cases, as he should. But for gun rights supporters, Gorsuch looks like he will be an ally and advocate for the civil rights of gun owners, sellers, and manufacturers.