Why Gun People Are High on Neil Gorsuch
An influential Second Amendment lawyer expects Trump's Supreme Court pick to expand Constitutional protections to guns in public spaces.
Supreme Court Justice nominee Neil Gorsuch shares a laugh with a Senator. (AP Photo/Susan Walsh)
A version of this article originally appeared on the Trace.
Last week, the National Rifle Association splashed television ads across the country, warning viewers in dire tones that without five conservatives on the Supreme Court, Americans can kiss their gun rights goodbye. The campaign cost the NRA roughly $1 million, and its timing was not incidental. The blitz was pegged to overlap with the Senate confirmation hearings of President Donald Trump's Supreme Court nominee, Neil Gorsuch, whose appointment the gun group is aggressively promoting.
Yet the NRA's investment Gorsuch is in some ways an act of faith. In his decade on the federal bench, the Tenth Circuit judge has produced precisely one direct opinion on gun rights, in which he declared, "The Second Amendment protects an individual's right to own firearms and may not be infringed lightly." Last week, across two days of questioning before the Senate Judiciary Committee this week, Gorsuch shared few further clues. Quizzed by California Democrat Dianne Feinstein, he simply said that he would respect the precedent set by the landmark District of Columbia v. Heller ruling establishing the personal right to own a gun—essentially the same position struck by Obama nominee Sonya Sotomayor during her confirmation grilling, and one that elides the big questions that the landmark 2008 decision left unresolved.
Gorsuch's thin record and tempered testimony doesn't concern David Hardy, an eminent conservative constitutional lawyer who shares the NRA's confidence in Trump's pick. And on matters of the Second Amendment, Hardy's assessment carries great weight among gun proponents.
In 1974, Hardy became the first student in the United States to publish a law review article arguing that the Second Amendment is an individual right. Nearly four decades later, during McDonald v. City of Chicago, the 2010 case in which the Supreme Court extended the rights guaranteed in Heller to the states, his work was cited in an opinion written by Justice Clarence Thomas.
To get a better understanding of what gun rights activists see in Gorsuch, the Trace spoke with Hardy by phone, reaching him at his home office in Tucson, Arizona.
VICE: Despite his spotty track record on the gun issue, gun rights proponents are bullish on Gorsuch. Isn't that a bit of a gamble?
David Hardy: Well, I'm rather pleased about the fella—Gorsuch sounds like an eminently good justice-to-be. He's said to be an originalist, and if you're an originalist, the Second Amendment wins every time.
So if Justice Scalia's famously literal interpretation of the Constitution produced Heller, and Gorsuch views the law the same way Scalia did, that leaves you confident he'll rule in the same direction on gun cases that may come before the Supreme Court in the future?
Earlier this week, during his hearing, he made a point of stating that Heller is the law. Saying it in that way sets him apart from the judicial tendency to go with the view that all words are ambiguous and indeterminate and therefore it is the job of the court to give meaning to words. But judges don't make policy. People who make policy are elected. That doesn't hold true if a judge believes words are indeterminate. Gorsuch doesn't seem to have that particular flaw. He believes there is law that exists outside his own policy judgments.
But even Scalia, the ultimate originalist, allowed in his Heller opinion that it's OK to prohibit firearms in certain "sensitive spaces," like schools. Doesn't a phrase like "sensitive spaces" leave much open to interpretation?
Yes, it's hard to say where that has any originalist backing to it. On the other hand, I can see that concept, so long as it isn't too widely extended.
Is there any reason to believe Gorsuch might take a more expansive view of gun rights than Scalia did?
I can't say specifically that he will or won't, but he seems to be inclined that way—he at least wouldn't hold it to its narrowest possible meaning. Heller merely deals with gun possession inside the home. But originalists believe that, according to history, the right to keep and bear arms gives the right to bear arms, not just to keep them. The circuit courts have split on this—some say carrying outside the home is protected, but others have said that only the Supreme Court can make us apply the right outside of the home. I think Gorsuch would recognize that the Second Amendment is the right to bear arms as well as keep them, and thus apply the right outside of the home.
Check out the Motherboard documentary about the strange, troubled history of the Smart Gun in America.
Would you have felt more comfortable with a nominee who had a more concrete record on these questions?
A paper trail is hard to get on the Second Amendment. Up until Heller, nobody would have written an opinion of the Second Amendment as individual right. Nine years just isn't a lot of time for a whole lot of courts to come down with opinions. To an extent, you have to make an educated guess on how someone in Gorsuch's position would come down in Second Amendment cases. I don't think Justice Roberts had a paper trail on the issue, and I'm not sure Alito did either.
Are you saying that the little that's known about Gorusch's position on gun laws is as much as you can hope to know about any nominee?
He has more of a paper trail than 90 percent of the federal judiciary—maybe even 95 percent. Most Second Amendment cases are going to come out of two circuits—the Second Circuit and the Ninth Circuit. The Ninth has California and Hawaii and Second has New York and Connecticut. Those states have the strictest gun laws in the country. But you're never going to get a Second Amendment case out of, say, Arizona or Texas or Virginia.
Let's talk more about the one significant gun case in which Gorsuch was involved: In Colorado, a man pleads guilty to attempted robbery, and during the sentencing portion of his trial, the judge says, "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." Later, the man gets caught carrying a loaded gun with an obliterated serial number. He's charged as a felon in possession of a firearm because felons are not allowed to possess guns. That case later comes before Gorsuch's court, where Gorsuch writes a dissenting opinion saying prosecutors should have to prove the man knew he had a criminal record that disqualified him from firearms ownership, because according to the relevant federal statute, a felon in possession of a gun must "knowingly" violate the law to be found guilty. Gorsuch essentially says the man in question conceivably wasn't aware he was felon—the judge in the robbery case might have confused him.
I like judges who require knowledge for a criminal conviction. There are way too many laws out there that allow someone to be convicted without having to prove criminal intent.
But with something like gun possession, isn't it sometimes absurdly difficult to prove someone "knowingly" violated the law?
I like things to be hard to prove when it comes to putting someone in jail.
Sure—but where do you draw the line?
If someone commits a crime, and tries to hide what they did, then they probably knew it was illegal. For example, if a guy didn't know what he did was wrong, then did he hide the gun? Why didn't he confess, if he wasn't worried about getting in trouble? Why did he flee the scene?
What happens when there's more ambiguity? What if the trial judge in the case Gorsuch ruled on had not mentioned anything about a "deferred judgment"? How do you think Gorsuch have applied the "knowingly" standard under those circumstances?
That would be a different story. You would then have to start with the assumption the man is a convicted felon who knows what he's convicted of. If the man then wants to claim he didn't understand he was a felon, well, let him get on the stand and say that.