Tracing Judge Gorsuch’s Paper Trail On The Second Amendment

posted on February 2, 2017
Zach Gibson/AFP/Getty Images

“The Second Amendment protects an individual’s right to own firearms and may not be infringed lightly.” So wrote U.S. Supreme Court nominee Neil Gorsuch in United States v. Miguel Games-Perez. That case demonstrates why Judge Gorsuch is a worthy successor to Justice Antonin Scalia. 

Judge Gorsuch currently serves on the 10th Circuit Court of Appeals. Based in Denver, it is the federal appeals court for Colorado, Wyoming, Kansas, Utah, New Mexico and Oklahoma. Gorsuch was nominated for the 10th Circuit by President George W. Bush in 2006. A Denver native, he earned his law degrees from Harvard and Oxford.

Of the national gun-ban groups, the first to speak out against Gorsuch was the Coalition to Stop Gun Violence. Executive Director Josh Horwitz stated:

“While there is no paper trail of where Judge Gorsuch stands on guns, his selection by the NRA-backed Trump/Bannon White House certainly gives us a hint. If Gorsuch shares the NRA’s toxic ideology, he is already at odds with the overwhelming majority of Americans.”

Horwitz is not much of a detective, since Gorsuch’s paper trail can easily be found on the 10th Circuit’s website. The most important case in which he wrote about the Second Amendment tells you a lot about his overall judicial philosophy. 

In 2009, Miguel Games–Perez pleaded guilty to attempted robbery. The Colorado state trial judge gave him a deferred judgment. The judge explained, “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.” “The Second Amendment protects an individual’s right to own firearms and may not be infringed lightly.” —U.S. Supreme Court nominee Judge Neil Gorsuch.

Later, Games-Perez was found carrying “a fully loaded Hi–Point .380-caliber pistol with an obliterated serial number.” He was prosecuted by the U.S. government for the federal crime of being a felon in possession of a firearm. Eventually, the case came to the 10th Circuit, on appeal. 

The 1968 Gun Control Act imposed harsh penalties on “prohibited persons” who possessed firearms. In 1986, Congress specified that people may be convicted only if they “knowingly” violate the law. This new language was part of the Firearm Owners’ Protection Act, a comprehensive reform of federal gun law promoted by the NRA. The sponsors were Rep. Harold Volkmer, D-Mo., and Sen. Jim McClure, R-Idaho.

To Gorsuch, the reformed statute was plain: To be convicted of being a felon in possession, a person must know that he has a prior felony conviction, and he must know that he is possessing a firearm. 

The other two judges, however, wrote that “knowingly” applies only to knowing about the firearm—and does not apply to knowing about the prior conviction.

Gorsuch thought this was incorrect. The normal rules of statutory construction demonstrated the “knowingly” applied to both elements of the alleged crime. Gorsuch wrote that a "state court judge repeatedly (if mistakenly) represented to him [Games-Perez] that the state court deferred judgment on which his current conviction hinges did not constitute a felony conviction ... Given these 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.”

Following the statutory text would simply require the government to prove that the defendant knew of his prior felony conviction,” Gorsuch explained. “And there's nothing particularly strange about that. After all, there is ‘a long tradition of widespread lawful gun ownership by private individuals in this country,’ and the Supreme Court has held the Second Amendment protects an individual's right to own firearms and may not be infringed lightly.”

Here, Gorsuch cited D.C. v. Heller (2008), and quoted the 1994 Staples v. United States opinion written by Justice Sandra Day O’Connor.

Heller does authorize gun bans for convicted felons, as Judge Gorsuch noted. This is why the government should have to prove that a person knows that he had a prior conviction. That prior conviction is the only thing “separating criminal behavior from not just permissible, but constitutionally protected, conduct.” Gorsuch follows the law as it is written, which shows that he respects the written Constitution.

Gorsuch wrote the above statements when he was part of a three-judge appeals panel in the Games–Perez case. Later, the same case came before all 10 judges of the 10th Circuit. In the second round, Gorsuch was again in the minority. He wrote: “There can be fewer graver injustices in a society governed by the rule of law than imprisoning a man without requiring proof of his guilt under the written laws of the land.” Further, “When the current statute’s language is clear, it must be enforced just as Congress wrote it.” 

He explained that felon-in-possession laws “operate to criminalize the possession of any kind of gun. But gun possession is often lawful and sometimes even protected as a matter of constitutional right.” So the government should have to prove that the accused had a guilty mind (mens rea)—that he knew that he was a convicted felon.

Judge Gorsuch’s dissent in the second case delved into many intricate details about rules for statutory interpretation and precedents. But near the end is a passage that gets to the heart of why Judge Gorsuch should become Justice Gorsuch.

Some of the other judges had argued that the 10th Circuit should not strictly apply the “knowing” language in the statute. They pointed out that other federal circuit courts, which cover other regions in the United States, have allowed convictions of people in similar circumstances. 

Gorsuch responded: “[I]t surely cannot be that someone must go to prison just so we can avoid treating him better than those other circuits have incorrectly allowed to be put away.”

Gorsuch follows the law as it is written, which shows that he respects the written Constitution. This means that the prosecution must prove that the accused is guilty of every element of the alleged crime. It also means that “an individual’s right to own firearms … may not be infringed lightly.”


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