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Donald Trump has revealed his first nominee to the Supreme Court, picking Neil Gorsuch, a judge who currently serves on the Tenth Circuit Court of Appeals in Denver. Gorsuch is identified in reports about him as an originalist, comparing him to Antonin Scalia, whom Gorsuch will replace if confirmed.
From the perspective of gun rights, the other name that was high on the list of likely nominees, Thomas Hardiman of the Third Circuit, would have been better. In 2013, Hardiman dissented from a ruling in a New Jersey case on the state’s law that limits legal carry to those who can show a “justifiable need” to licensing officials. The Third Circuit upheld the law, while Hardiman argued in his dissenting opinion that the Second Amendment bars states from denying carry, saying that “the need for self-defense naturally exists both outside and inside the home.”
By contrast, Gorsuch’s only paper trail on guns comes from a New Mexico case, United States v. Rodriguez in 2013 in which the appellant in the case was spotted by a policeman as carrying a weapon and stopped for a search. Rodriguez was found to have a concealed handgun and arrested, since he did not have a license to carry. It also turned out that he was a convicted felon.
This case illustrates what happens when we have a poor choice of representative for gun rights in a court case. The Miller case that upheld the National Firearms Act of 1934 dealt with a criminal who had been found in possession of a short-barreled shotgun that did not have the necessary tax stamp and registration. But Miller himself had disappeared, and his lawyers, seeing no reason to argue a case for which they wouldn’t be paid, didn’t show up to argue before the Supreme Court. And thus a bad ruling was made that has been with us for decades, giving aid and comfort to those who want to impose more restrictions on gun rights. The extraordinary fact about the Heller and McDonald decisions is that we had ordinary citizens who were law-abiding and who wanted to be able to protect themselves within the law.
Gorsuch didn’t write the opinion, but he did join the majority, and the details of the case raise concerns, since what was in debate in the Rodriguez case looks a lot like the same kind of thing that went on in New York City with the policy of “stop and frisk.” Without the Fourth Amendment, the Second Amendment is diminished. A government that has the authority granted to it by the judicial branch to inspect citizens on a whim is that much closer to being able to demand the registration of firearms, of knowing who owns what guns. And Gorsuch has also written in support of laws that ban assisted suicide, saying that no such right can be found in the law.
This is an area in which so-called originalists often miss the mark. They seem to forget that the Ninth Amendment was also put into the Bill of Rights in the early days of this country, and they leave out the understanding of rights that our founders held, namely the view that we loan power to the government and that the law first and foremost exists to protect our rights, including all the ones not named in the Constitution.
Given the unfortunate way that the Second Amendment was written, allowing gun control advocates to believe that the militia is the point, saying that someone is an originalist isn’t in itself a guarantee. If Gorsuch really is like Scalia, he may give some measure of support to gun rights in his decisions, but a clear statement from him during his confirmation hearing would give me more confidence about him on this subject.