At his confirmation hearing today, Supreme Court nominee Neil Gorsuch declared that D.C. v. Heller was the law of the land and that he would apply and enforce that decision if confirmed.
“Whatever’s in Heller is the law,” he replied to questions about the Second Amendment from Senator Dianne Feinstein (D-Calif.) “And my job is to apply and enforce the law.”
Senator Feinstein, who has a rather restrictive view of enumerated rights such as freedom of the press and the right to keep and bear arms, tried to bait Judge Gorsuch into supporting her agenda. The Judge, however, didn’t play along.
The dialogue quoted below illustrates this, and is notable for two reasons–one amusing, one not.
SEN FEINSTEIN: In D.C. v. Heller, the majority opinion written by Justice Scalia recognized that — and I’m quoting — of course the Second Amendment is not unlimited,” Justice Scalia wrote, for example, laws restricting access to guns by the mentally ill or laws forbidding gun possession in schools were consistent with the limited nature of the Second Amendment.
Justice Scalia also wrote that weapons most useful in military service, M-16 rifles and the like, may be banned without infringing on the Second Amendment. Do you agree with that statement, that under the Second Amendment, weapons that are most useful in military service, M16 rifles and the like, may be banned?
JUDGE GORSUCH: Heller makes clear the standard we judges are supposed to apply. The question is whether it’s a gun in common use for self-defense, and that may be subject to reasonable regulation. That’s the test as I understand it. There’s lots of ongoing litigation about which weapons qualify on those standards.
Whatever’s in Heller is the law. And I follow the law.
SEN FEINSTEIN: Do you agree [OVERLAPPING TALK]–
JUDGE GORSUCH: It’s not a matter of agreeing or disagreeing, respectfully, Senator, it’s a matter of it being the law. And my job is to apply and enforce the law.
On the funny side, Sen. Feinstein’s endorsement of the dicta from the Heller decision regarding full-auto M-16s undermines something she’s (allegedly) averred: that the bit in the Second Amendment concerning the militia (“A well regulated Militia, being necessary to the security of a free State….”) limits Americans’ right to keep and bear arms in any significant sense.
The part of Heller she lovingly quotes explicitly states that the right to keep and bear arms does not, in fact, depend on actual service in the militia at all. It’s good to see Sen. Feinstein willing to walk that back in public.
On the less-funny side, Judge Gorsuch mis-stated the rule from Heller. At no point did the majority hold that firearms are subject to “reasonable regulation.” As scholar David Kopel pointed out in an article for the Volokh Conspiracy in 2010:
Heller never adopted a “reasonable regulation” standard. Heller allows for machine gun bans under [the] theory that they are not part of the Second Amendment (that is, they are not Second Amendment “arms”).
Restrictions on gun carrying in “sensitive places” are not explained doctrinally, but they are easily comparable to First Amendment “time, place, and manner” rules. Heller says that concealed carry may be banned; in the states, the dominant theory for this restriction was that concealed carry was not part of the right.
Finally, Heller’s allowance for conditions and qualifications on the commercial sale of guns was expressed without being described as part of some kind of “reasonableness” test.
In the case Mr. Kopel referenced, McDonald v. Chicago, the Supreme Court majority went out of its way to denigrate the notion made by the city of Chicago’s attorney in oral arguments that states and municipalities could “enact any gun control law that they deem to be reasonable, including a complete ban on the possession of handguns in the home for self-defense.”
Of course, testimony before Congress has about the same precedental value as the Heller dicta about M-16s that Sen. Feinstein quoted: i.e. none whatsoever. And a clever jurist like Judge Gorsuch, who repeatedly stressed that the role of judges was to enforce the law, not legislate from the bench, knows that all too well.
Perhaps Judge Gorsuch was just planting a nice sound-bite for the evening news that also allowed him to control the conversation with the senior Senator from California.
As far as that goes, the Judge sure did look polished, confident, and pleasant, in contrast to his inquisitors, who seemed angry, petty, and tendentious. Certainly, he stayed on the message he laid out in his opening statement, that the role of the judiciary is to apply and enforce the law, and not legislate it from the bench:
When I put on the robe, I’m also reminded that under our Constitution it’s for this body — the people’s representatives — to make new laws, for the executive to make sure those laws are faithfully executed, and for neutral and independent judges to apply the law in the people’s disputes.
If judges were just secret legislators, declaring not what the law is but they would like it to be, the very idea of government by the people and for the people would be at risk. And those who came before the court would live in fear, never sure exactly what the law requires of it except for the judge’s will.
We’ll keep listening for more Second Amendment questions as the hearings continue tomorrow.