Judge Neil Gorsuch (L) and President Donald J. Trump. Via foxnews.com.

My first thought upon learning that Judge Neil Gorsuch had been nominated to the Supreme Court was about how weird it was for the first time in eight years to hear the name of a judicial nominee and not immediately cringe.

In Judge Gorsuch, President Trump has selected someone that is, by all accounts, a strong writer and a strict originalist who is highly skeptical of the power of the Executive Branch of the Government. Nina Totenberg of NPR described him as a “proponent of originalism, the idea that the Constitution should be interpreted as the Founding Fathers would have more than 200 years ago, and of textualism, the idea that statutes should be interpreted literally, without considering the legislative history and underlying purpose of the law.”

I was put into a good mood when I read that, although from a left-ish NPR reporter, words like “textualist” and “originalist” are not necessarily high praise. So I did my own digging to see what I could see.

Whatever his other merits, Judge Gorsuch does not, unfortunately, have a significant written track record on the Second Amendment. That said, I did two cases from his tenure on the 10th Circuit Court of Appeals that brushed up against the right to keep and bear arms; I want to talk about one of them right now, U.S. v. Miguel Games-Perez, which tells us a little more his approach to judicial decision-making than his views on gun rights. (The other will be saved for a later time.)

Mr. Games-Perez had been convicted of being a felon-in-possession of a Hi-Point .380 by a lower court in violation of 18 U.S.C. §§ 922(g) and 924(a). He appealed, arguing that the feds should have to prove that he *knew* that he was a felon and wasn’t supposed to have a gun; 2 of the 3 judges on the 10th Circuit’s panel essentially told him to pound salt.

Judge Gorsuch, although concurring in the result, wrote a separate opinion. Technically, he said, the statute had a mens rea requirement, meaning the feds ought to have to establish that Games-Perez knew he was a felon. No, this isn’t silly on its face. Games-Perez had signed a plea deal to the crime of felony attempted robbery in a Colorado court. If he’d completed the terms of the agreement, the charges would have been dismissed, but he was caught with his Hi-Point before then, so the deal went kaput. When the deal was signed, Games-Perez was explicitly told this by a state court judge:

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.” After accepting the plea, the judge then said, “I am not entering judgment of conviction at this time, hopefully, I never will.” Thus, Judge Gorsuch concluded, a layperson like Games-Perez (who, I’m assuming, wasn’t exactly in contention for a Fields Medal,) might’ve reasonably thought he hadn’t actually been convicted of a felony. As a result, the Judge thought that the issue of whether or not Games-Perez knew he was a felon (and thus barred from possessing a firearm,) was a triable fact that should’ve been decided by a jury.

In the end, however, Judge Gorsuch joined the majority in the decision that sent Games-Perez down the river. Why? Because, like all lower court judges, he was bound to follow precedent set by the Supreme Court. He also made clear, however, that he thought the precedent he had to follow compelled him to make a “mistake”.

I recognize that precedent compels me to join the Court’s opinion. But candor also compels me to suggest that we might be better off applying the law that Congress wrote than the one [the Supreme Court] hypothesized…. If Congress wishes to revise the plain terms of [the law,] it is free to do so anytime. But there is simply no right or reason for this court to be in that business.

Did you like that? Good. Here’s something better.

Judge Gorsuch was also described by Jacob Gershman at the Wall Street Journal as a “searing critic” of the ‘Chevron deference‘ doctrine relating to Administrative Law. The doctrine requires courts todefer to an executive agency’s interpretation of a congressional statute when no doubt exists about what lawmakers meant to enact. If the legislative basis for a regulation is in doubt, but the rule seems reasonably constructed, judges are supposed to give agency regulators the benefit of the doubt.”

Chew on that one for a second: even if the law is questionable, if the rule written by these unelected bureaucrats seems solid, the courts will defer to them.

Administrative law is the poison gas of the anti-gun lobby. I hope everyone remembers that incident back in 2015, when the Obama Administration tried to ban M855 and SS109 5.56mm ammunition through the promulgation of a new rule. The gun rights community rallied and forced them to back down, but the power wielded by unelected bureaucrats is troubling.

In an immigration case, Gutierriez-Brizuela v. Lynch, Judge Gorsuch had some pretty blistering things to say on the issue. From the Wall Street Journal:

Chevron deference, Judge Gorsuch wrote, “invests agencies with pretty unfettered power” and permits “executive bureaucracies to swallow huge amounts of core judicial and legislative power and concentrate federal power in a way that seems more than a little difficult to square with the Constitution of the framers’ design.”

He called Chevron deference a “judge-made doctrine for the abdication of the judicial duty.”

A judge who stands against administrative law and doesn’t want to legislate from the bench? This is sounding better and better. We still need to ask him some questions and learn more about him, but you can put me in the cautiously optimistic zone for now.

For what it’s worth, Senator Ted Cruz seems to be a fan:

Judge Gorsuch is brilliant and immensely talented. He has impeccable qualifications, having clerked at the Supreme Court, excelled in private practice, served at the highest levels of the Justice Department, and garnered a stellar reputation over the past decade as an appellate judge. More importantly, though, he also mirrors Justice Scalia in that he has a proven track record of honoring the Constitution, following the text of the law, and refraining from imposing his policy preferences from the bench. As a result of his fidelity to law, he has proven to be a champion of federalism, the constitutional separation of powers, religious liberty, and all of the fundamental liberties enshrined in our Bill of Rights. I couldn’t be happier with his selection.

Indeed, I wholeheartedly applaud President Trump for nominating Judge Gorsuch. Our country desperately needs Supreme Court justices who revere the Constitution and are willing to elevate it over their own personal preferences, and Judge Gorsuch has demonstrated that faithfulness.

54 Responses to Judge Neil Gorsuch: A Constitutional Originalist Skeptical of Executive Power

      • @Charlie Mike Mike,

        “A Hi Point .380? I didn’t know felons could not have BB guns.”

        You should give the .380 ACP a little more respect. I have worked up a very nice SD load that launches an 88gr Remington HP bullet at 1095 fps / 234 ft-lb using 4.1gr of Universal in a Makarov with a 3.68″ barrel. That’s slightly better than a BB gun.

        Marshall

  1. Judge Gorsuch’s speech last night gave me chills(the good kind). If you take him at his word, he is going to be a champion for the Constitution as it was written for a very long time.

    • I like what our esteemed colleague John Lott wrote about this a little bit ago, to summarize: the louder the Dems squeal about him, the better a choice he is.

    • His concurrence basically states, “I don’t like it, but I will follow my duty by using set supreme court precedence.”

      He did not want to concurr, but previous SC precedence meant he had to, and he followed the law because of it. It’s up to the lawyers to take his statement to the SC and try to have the precedence reversed.

      He knows his place, he’s not a 9th circuit liberal who writes their own precedence no matter what they are supposed to do. If elevated to SCOTUS he will have the ability to reverse poor SC precedence, but refuses to do so out of place. He is a good judge, he keeps politics out of it, he just deals with the law.

      By your statement he should be like the judges who burn the constitution for fun and write his own version of things. Bad thinking.

      • his blanket concurrence did nothing of the sort. writing his own opinion that concurred with the result but not with the reasoning would have accomplished that but that’s not what he did.

        previous Circuit Court decisions invalidating Terry stops in light of 2A that he could have cited are listed ad nauseum in the dissent for US v. Robinson. dissent starts on page 34:

        http://www.ca4.uscourts.gov/Opinions/Published/144902A.P.pdf

      • Done chewing yet? I’m pretty well convinced that Rodriguez is a serious misapplication of Terry. Larry Pratt seems to be the only one talking about it.

    • I read the Rodriguez opinion. I found two MAJOR red flags.

      1:

      Driving a car, however, is not like carrying a concealed handgun. Driving a vehicle is an open activity; concealing a handgun is a clandestine act. Because by definition an officer cannot see a properly concealed handgun, he cannot randomly stop those individuals carrying such weapon. Officer Munoz responded to a dispatch reporting two employees of the convenience store were showing each other handguns. Once at the store, he witnessed Defendant carrying the concealed weapon only because Defendant was bending over and his shirt was untucked. Moreover, unlike the random stop of a motorist, we may safely assume the contribution to public safety made by the stop of an individual known to be carrying a concealed handgun will hardly be insignificant since “[c]oncealed weapons create an immediate and severe danger to the public.” Terry, 392 U.S. at 31, 88 S.Ct. 1868 (Harlan, J., concurring).

      Randomly stopping a vehicle to check the driver’s license and registration is more comparable to randomly stopping an individual openly carrying a handgun (which incidentally is lawful in New Mexico). The Supreme Court held the former unconstitutional. Whether the latter is constitutionally suspect is a question for another day. But where a police officer in New Mexico has personal knowledge that an individual is carrying a concealed handgun, the officer has reasonable suspicion that a violation of N.M. Stat. Ann. § 30-7-2(A) is occurring absent a readily apparent exception to subsection (A)’s prohibition. Accordingly, Officer Munoz’s initial seizure of Defendant was “justified at its inception” and therefore passes Fourth Amendment scrutiny. Terry, 392 U.S. at 22, 88 S.Ct. 1868.

      2:

      “[T]o proceed from a stop to a frisk, the police officer must reasonably suspect that the person stopped is armed and dangerous.”[5] Johnson, 555 U.S. at 326-27, 129 S.Ct. 781. Defendant acknowledges he was armed, but claims Officer Munoz had no reason to believe he was dangerous. We have already observed that a prudent officer could reasonably suspect Defendant’s handgun was loaded. That alone is enough to justify Officer Munoz’s action in removing the handgun from Defendant’s waistband for the protection of himself and others. But even if Defendant’s handgun had not been loaded, the Supreme Court’s decision in McLaughlin v. United States, 476 U.S. 16, 106 S.Ct. 1677, 90 L.Ed.2d 15 (1986), forecloses his argument that the gun posed no immediate threat to the officers. In McLaughlin, the Court explained an unloaded handgun is a “dangerous weapon:”

      [A] gun is an article that is typically and characteristically dangerous; the use for which it is manufactured and sold is a dangerous one, and the law reasonably may presume that such an article is always dangerous even though it may not be armed at a particular time or place.

      Id. at 17, 106 S.Ct. 1677.

      We will not deny an officer making a lawful investigatory stop the ability to protect himself from an armed suspect whose propensities are unknown. See Adams, 407 U.S. at 146, 92 S.Ct. 1921. Officer Munoz did no more than was required to retrieve the gun. Officer Munoz was entitled to remove Defendant’s handgun, not to discover evidence of a crime, but to permit him and Officer Miller to pursue their investigation without fear of violence. See id. As the Supreme Court observed in Adams, “[T]he frisk for weapons might be equally necessary and reasonable, whether or not carrying a concealed weapon violated any applicable state law.” Id. Accordingly, Officer Munoz’s act of dispossessing Defendant of his handgun subsequent to his seizure was “reasonably related in scope to the circumstances which justified the interference in the first place.” Terry, 392 U.S. at 20, 88 S.Ct. 1868.

      Conclusion:

      This opinion sets the precedent for a police officer to assume any concealed gun carrier is committing a crime, AND that any person who is carrying a gun may be presumed to be dangerous.

      This is VERY BAD.

      • “This opinion sets the precedent for a police officer to assume any concealed gun carrier is committing a crime.” This opinion is based on New Mexico precedent from a New Mexico appellate court that any concealed carry gives police probable cause to believe a crime has been committed. (State interpretation of state law controls). A Terry stop requires reasonable suspicion. Probable cause is more than reasonable suspicion.

        “This opinion sets the precedent … that any person who is carrying a gun may be presumed to be dangerous.” A Supreme Court case sets that precedent. It’s cited in the opinion.

        This opinion is simply following controlling precedent. The opinion explicitly states that the Defendant didn’t raise the Second Amendment. Since he didn’t, they didn’t consider it.

        I still want senators to question him about it.

  2. a supreme court justice nominee who is skeptical of executive power and can read the law as written?

    the left will scream bludy mrder

  3. Very very encouraging.

    As bad as Trump may be this partially vindicates everybody who voted for him based on SCOTUS picks.

      • From what little I’ve followed, Trump firing the acting AG for saying she felt Trump’s travel ban EO was “unconstitutional,” that’s a disturbing precedent to me. We had a problem with Holder being an Obama puppet, we should have a problem with any given AG acting solely on the whims of any given president. Hopefully whoever replaces her will be just as willing to have their own spine as well.

        • It’s called the chain of command. There’s a difference between being a congressionally approved AG and a bureaucratic stand-in while Congress gets their act together. The way I see it, Trump should have gotten that chain and beaten her ass with it to remind her who is in command.

        • Yates did not say that the EO was unconstitutional or unlawful. The DOJ’s Office of Legal Counsel reviewed it before she decided to order the DOJ not to defend it and found that it was both Constitutional and legal. In her statement, she questions whether the “policy choice embodied in the Executive Order is wise and just” and states that (in her opinion) it is not sufficient that the EO is “legally defensible” but must be consistent with the DOJ’s “solemn obligation to always seek justice and stand for what is right.” She (a political appointee from the prior administration) was applying her policy preferences, not her legal judgment.

        • That’s not the AG’s job. Their job is to apply the law as written. Until a judge says otherwise, Trump’s order is law. She refused to apply the law, she is derelict in her job description, he has grounds to remove her.

          I’m not saying I wholeheartedly agree with the EO, but I do agree with the actions taken by the administration in this matter.

          If a public defender got in front of a judge and said “I’m not defending this guilty sonofabitch.” He would be heavily reprimanded by the court and likely fired by his office, because he is failing to live up to the standards of his position.

        • Just to be clear, she was a political appointee, who was going to be dismissed as soon as Sessions get confrimed. that ALWAYS happens when the executive changes hands. Every time. They fire the previous administrations political appointess to bring in their own. So he did it a few days earlier. Sure, he did it because she refused to enforce his executive order, which SOUNDS bad. But if you read her statements and the e-mails she sent out to the DoJ telling them not to defend/enforce the EO, her objection was NOT based on any issue of law (ie “we can’t enforce this because it violates laws X, Y, and Z, and the constitution”), it was based on her personal beliefs that it was objectionable and unamerican. I can applaud an AG standing up for the constitution and laws of our country to the PotUS. But a seat-warmer interim AG who knew she was fired in a day or three anyways, telling the DoJ not to enforce the PotUS’ executive orders because she personally disagreed with them… there’s nothing laudable in that. That’s just stupid and petty and deserving of immediate termination.

        • @Yada

          Incorrect. The AG is a member of the executive branch. His responsibility is to follow orders or resign. It’s called the chain of command.

        • She was simply refusing to perform the tasks she was being paid to accomplish. Bang. You’re fired. Just that simple. She somehow got the impression her position was a step above “president”. Probably because some like herself believe “Republican President” is one step below “Democratic janitor”. Stop my tax dollars lining her pockets just as quickly as humanly possible.

        • “If a public defender got in front of a judge and said “I’m not defending this guilty sonofabitch.” He would be heavily reprimanded by the court and likely fired by his office,”

          Actually, I’m pretty sure he would be disbarred by sunset.

        • The acting AG was not fired for disagreeing with the POTUS, but for telling her, at that moment, underlings to have no hand in defending the executive order. That is why she was let go.

          The acting AGs only job, should have been to direct underlings to fulfill the departments duties, or resign as an act of defiance. Instead she played politics, and was made to look a fool.

      • Well. most notably if he really believes that protectionism leads to wealth and growth, he’s utterly mistaken and we’re in trouble. You might be able to protect a couple factories for a little while longer but you’ll raise prices and harm economic growth in the process. The wall sounds great but the extra expense is not needed and you’ll end up paying for it. The defense budget is bloated we need reform not more rhetoric about “gutted military”. The law and order rhetoric about crime is troubling.

        There’s a lot good about Trump, definitely. Probably the worst thing is the above, when his misinformed opinions about trade sound like Bernie Sanders. I’m very happy Hillary lost.

        • Much of what Trump said about trade and trade deals during the campaign was highly suspect to not only professional economists but also by most of the CEO’s of the Fortune 500. But then, with his first action on trade as President, he immediately reversed those opinions. He went from “trade agreements are bad” to “multilateral trade agreements are bad, bilateral trade agreements are good”. Which is outfrigginstanding and exactly what we should have been doing as a nation for the last 40 years. As a critic of his national economic policies, he quickly changed my mind with that move. I will be suspect of any and every federal authority, but that bought him a whole lot of benefit of the doubt with me.

  4. since this post drifts into non-2A areas, let’s go there.

    in his book “The Future of Assisted Suicide and Euthanasia” from 2006, he writes the Due Process Clause has been stretched “beyond recognition” when the Supreme Court protects unenumerated rights… for example the right to privacy. he’s also not a fan of assisted suicide, duels, selling your organs, illegal drug use, and sex work.

        • Please cite the portions of the CotUS on point. Thinking something is a right does not make it so.

        • PwrBottom: there’s this little thing called Amendment IX, which states: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” Also another thing called Amendment X, which states: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

          So the better question is where does it explicitly state or even imply that those things are NOT rights, and where does it EXPLICITLY state that power to regulate those things is granted to the federal gov’t?

        • How about these two:

          Amendment IX
          The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

          Amendment X
          The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

        • Which leaves the matters not explicitly listed for the courts and the people. Those courts and people have said… “Fuck you, that’s not a right.”

        • To avoid obvious (previous) digressions, let’s use “sex work” as a focus. Where in the constitution is “sex work” denoted as a responsibility of the federal government? Does anyone remember that those powers not specifically assigned to the feds are reserved to the states, or the people? The states should be deciding questions of prostitution, as well as marriages (involves “sex work”), divorces, “partnerships”, and so forth.

        • Agreed, but the terrorist left knows they can’t win an argument and convince the voters, so they declare their pet project a “right” and then relly on activist judges who overturn the will of the people.

  5. This guy is a gift from God, given what we were facing pre-election. Litmus test perfectionists: thank your lucky stars and go on with your lives.

  6. Leftist and mainstream media hate him, libtards gonna try to block the vote. I am also cautiously optimistic. I think he is our judge.

    • They’re not gonna break a sweat opposing him.

      Their base will think they’re opposing him, but they won’t really.

      I will be *very* surprised if they actually attempt a filibuster, instead of jumping up and down a hollering like the idiots they actually are.

      Let the twits be twits…

  7. This is the main reason I voted for Trump..The choices he published for the USSC position before the election gave me some hope, now, it first blush, this nominee gives me…. great hope? Now, of course, the left will be apoplectic, and rabid in their opposition to this man. They could not have accomplished any of their Western Culture destroying agenda without regressive judges “interpreting” so called “rights” from the plain language of the Constitution. This type of “originalist” , “texualist” (dare we say constitutionalist?) type of judge were the norm on the bench early in the century, before FDR packed the USSC with regressives like himself, enabling his grab for dictatorial power, and the next big growth of federal power and the consumate loss of individual liberty for the average American citizen.

    This is the true test of whether Trump can actually begin to turn the tide against the blood soaked evil that is the collectivist, freedom hating, G-d despising, baby murdering, moraless, perversion loving, statist worshiping, communist/marxist founded regressive left.

      • And I didn’t even have to use adhominems, or derogatory aspersions in my description of the left; I was simply enumerating by any rational, logical, historical, fact and action based process, what the great majority have proven themselves to be.

  8. His position on non-enumerated rights is troubling; it is exactly what some, fearing for liberty, worried about back at the start. The problem is that he actually questions at least one thing that the Founders and Framers took for granted, i.e. the right to privacy. They considered it so obvious no one thought of enumerating it!

    The position of any justice should be the presumption of liberty: that if a position enhances individual liberty, it wins; that if it upholds self-ownership, it is a right.

  9. To bring this back to the Second Amendment, I believe that we know what his vote would be if a case like Bonidy, et al v. USPS, were to be appealed to the Supreme Court.

    In case you don’t remember, 18 United States Code 930 states that possessing a firearm or dangerous weapon in a federal facility is prohibited. And a Federal facility is defined as, “A building or part thereof owned or leased by the Federal Government, where Federal employees are regularly present for the purpose of performing their official duties.”

    However, in writing the regulation, 39 CFR Part 232.1(a), the Postal Service bureaucrats wrote, “Applicability. This section applies to all real property under the charge and control of the Postal Service, to all tenant agencies, and to all persons entering in or on such property.” That means that every time you drive onto a Post Office parking lot with a handgun, even if you are licensed to carry, you are a criminal.

    Ted Bonidy contended that it violated his 2nd Amendment rights to (1) not be able to bring his gun into Post Office or (2) not be able to store it in his car in the parking lot.

    The 10th Circuit ruled, “Next, we address the application of that prohibition on the U.S. Postal Service parking lot adjacent to the building itself. We conclude, on the facts of this case, that the parking lot should be considered as a single unit with the postal building itself to which it is attached and which it exclusively serves. There is, in fact, a drop-off box for the post office in the parking lot, meaning that postal transactions take place in the parking lot as well as in the building.”

    In other words, a bureaucrat can decide that Post Office parking lot is itself a part of a “government building.” Please, please, please, lets have bureaucrats write regulations that actually follow the law as written and not expand it to what they want it to say. A Justice Gorsuch would do exactly that.

    • Any federal law pretending to control the individual citizen’s RKBA on *ANY* government property is clearly in violation of 2A. We need to have a SCOTUS case. All that convoluted nonsense is outrageous.

  10. Well, if originalism in his application means bans on AR-15s, 30 round mags, suppressors, and things like “may issue” concealed carry are blatantly unconstitutional, then he’s a great SCOTUS justice.

    Although not gun related, depicting criminal illegal aliens is also going to be a battle.

  11. Very pleased with Trump on this pick. Now the question is will the Senate leadership be able to get him confirmed?

  12. If Gorsuch is anything at all like Scalia, we’re going to like him. If he can read the Constitution and understands “shall not be infringed,” a generation of gun guys will be naming their children “Neil.” Even their daughters.

  13. NO, no, no, Paulsen! You got it all wrong. Your associate at TTAG, Robert Farago, got it right! How did you, Paulsen, totally drop the ball??

    All y’all better read THIS:
    http://www.thetruthaboutguns.com/2017/02/robert-farago/nra-endorses-neil-gorsuch-supreme-court-goa-not-much/#comment-3182295

    and then THIS:
    http://www.americanthinker.com/articles/2017/01/judge_neil_gorsuch_some_cause_for_concern.html

    THEN tell me how safe you feel with this idiot Gorsuch.

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