Gorsuch view on scope of Second Amendment is a judicial mystery
Despite strong endorsements from some gun rights advocates, Supreme Court nominee Neil Gorsuch has a slim appeals court record on the subject — a record that leaves his views a mystery on how far constitutional firearms rights extend.
The National Rifle Association notes favorably a 2012 case in which Gorsuch wrote for the 10th U.S. Circuit Court of Appeals that “the Supreme Court has held the Second Amendment protects an individual’s right to own firearms and may not be infringed lightly.”
Taken with his conservative leanings, originalist views on interpreting the Constitution and comparisons to the late Justice Antonin Scalia, that leads many gun owners to believe Gorsuch would protect their interests.
“He has an impressive record that demonstrates his support for the Second Amendment,” Chris W. Cox, executive director of the NRA’s Institute for Legislative Action, said in a statement endorsing the nominee.
However, he has not ruled on major Second Amendment cases.
“We don’t know, for instance, if he believes people have a right to carry guns in public. We don’t know what he thinks about restrictions on assault weapons or high-capacity magazines,” said Adam Winkler, a law professor at the University of California, Los Angeles, and author of “Gunfight: The Battle Over the Right to Bear Arms in America.”
“Those are the big issues that are likely to come before the Supreme Court with regards to the Second Amendment,” Winkler said. “And on those issues Gorsuch is a Second Amendment mystery.”
The case cited by the NRA involved a man who appealed his conviction of being a felon in possession of a gun, saying he didn’t know he was considered a felon due to a misunderstanding over his deferred prosecution in a previous robbery case.
Although he had signed documents indicating he would be considered guilty of a felony, the state judge told him, among other things, “If I accept your plea today, hopefully you will leave this courtroom not convicted of a felony and instead granted the privilege of a deferred judgment, which means you will be supervised by the Department of Probation for a period of two years.”
Miguel Games-Perez was arrested less than a year later with a pistol that had an obliterated serial number.
Gorsuch was on a threejudge panel that found the government had only to prove Games-Perez knew he had a gun, not that he knew he was prohibited from having one. Gorsuch said the panel was bound by precedent.
“Our duty to follow precedent sometimes requires us to make mistakes. Unfortunately, this is that sort of case,” Gorsuch wrote.
Games-Perez later asked the full appeals court to hear the case, a request denied in a 6-4 decision. Gorsuch dissented, saying the full court could reconsider its precedent. He wrote that due to the “repeated misstatements from the court itself, Mr. Games-Perez surely has a triable claim he didn’t know his state court deferred judgment amounted to a felony conviction.”
Some groups favoring more stringent gun laws refer to the same case when arguing Gorsuch is unfit for the Supreme Court.
“Judge Gorsuch’s views are so outside the mainstream that he has gone out of his way to side with felons over public safety,” Peter Ambler, executive director of Americans for Responsible Solutions, said in a statement opposing Gorsuch’s nomination.