What Justice Gorsuch Might Mean for the Second Amendment

Politics

His concurrence with decisions upholding reasonable law-enforcement measures should not be controversial.

Trump’s nomination of federal judge Neil Gorsuch to the US Supreme Court has been greeted with much glee by conservatives and a well-anticipated gnashing of teeth by the progressive Left. Naturally, those of us in the gun community have our own particularized questions about what a Justice Gorsuch might mean for the Second Amendment. Let’s take a look, shall we?

A look at Judge Gorsuch’s generalized judicial philosophy is certainly encouraging. Given that it was Scalia who led the pro–Second Amendment decisions in District of Columbia v. Heller and MacDonald v. Chicago, and that Gorsuch has been described not inaccurately as “Scalia 2.0,” we may reasonably hope that Gorsuch will bring a Scalia-like originalist and textualist approach to Second Amendment jurisprudence.

Judge Gorsuch’s actual record on the Second Amendment is rather sparse, however. He has not been involved in first-principle cases such as Heller and MacDonald, so his decisions have nothing as explicitly affirming. It is worth asking, then, whether any of his decisions could suggest he would approach the Second Amendment in a negative manner.

Having spent decades fighting anti–Second Amendment legislation and jurisprudence, the gun community is sensitive to any suggestion, however slight, that a Supreme Court nominee might be predisposed against their views. The result is sometimes a tendency to object prematurely and cry wolf.

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.

 

  • Most in the gun community would agree that violent felons and the mentally deranged should be denied the right to arms and that doing so does not infringethe Second Amendment.
The Fourth Amendment, for example, does not protect us from all government searches — it protects us from unreasonable government searches. Similarly, the Second Amendment does not provide an absolute right to keep and bear arms under any circumstance.
Most in the gun community, for example, would agree that violent felons and the mentally deranged should be denied the right to arms and that doing so does not infringe the Second Amendment. Even in the context of law-abiding gun owners, few would consider a prohibition against carrying a gun into the Oval Office when meeting with President Trump to be an infringement of the Second Amendment, so long as our right to be armed could be asserted immediately afterward.

The transient seizure of a gun in the course of a lawful police stop—a seizure, that is, based on reasonable suspicion that a crime is underway—and under circumstances in which the police do not know whether the person stopped is armed lawfully is, in my view, not an infringement of the Second Amendment. Requiring the officer making a lawful stop to presume that the person stopped — stopped on reasonable suspicion of criminal activity — is law-abiding and is armed lawfully strikes me as unreasonable.

The rationale for such a transient taking — the safety of the officer, his partners, the public, and even the person stopped — is compelling and reasonable. Guns are, in fact, dangerous — that’s why those of us who concealed-carry them for personal protection do so in the first place: to make ourselves more dangerous to criminal predators.

As a strong Second Amendment advocate and someone who has concealed-carried a firearm for pretty much every day of my adult life (so, for most of the last 30 years), I find it difficult to get too worked up over a temporary seizure of my handgun during a lawful police stop so long as my gun is returned once the reasonable suspicion of criminal activity has been dispelled and the stop completed.

I, for one, welcome Judge Gorsuch’s nomination to the Supreme Court, with great optimism for the Court’s future Second Amendment jurisprudence.

— Andrew F. Branca is an attorney and the author of The Law of Self Defense: The Indispensable Guide for the Armed Citizen.