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Judge Neil Gorsuch’s nomination to the Supreme Court caused a minor kerfuffle among Second Amendment advocates. Judge Gorsuch’s philosophy of textual originalism and strict adherence to precedent prompted comparisons between the Colorado jurist and the late Antonin Scalia. However . . .

Some say the few cases Gorsuch handled that touch the Second Amendment suggest that he might embrace the stoic formalism of text and precedent, even if it means allowing small infringements to the Bill of Rights.

That’s how Gun Owners of America (GOA) Executive Director Larry Pratt sees it. Mr. Pratt wrote an article the day Gorsuch was nominated, expressing concern the would-be Supreme Court Justice had gone along with the other members of a 10th Circuit panel in the 2013 case U.S. v. Rodriguez.

Mr. Pratt complained that the Rodriguez decision allowed police responding to a ‘man with a gun’ call to “treat every law-abiding gun owner like a criminal . . . grabbing him, twisting his arm behind his back, slamming him down on the ground, and handcuffing him.” Further, he feels that the opinion will have a negative impact on the law going forward.

Of course, hard cases make bad law.  But…[by n]ot bothering to figure out the legality of Rodriguez’s firearm before detaining and disarming him, the officer’s initial actions would have been the same even if Mr. Rodriguez had been a lawful gun owner.

That makes the Gorsuch nomination sound like something less than an unalloyed boon for gun rights advocates. Are Mr. Pratt’s concerns justified?

Gun rights advocate and attorney Andrew Branca thinks not. He responded to Mr. Pratt in a National Review article. Essentially, Mr. Branca said Rodriguez was really a Fourth Amendment case. Law abiding gun carriers do not need to worry, because the police have not been empowered to perform unreasonable searches on them.

Branca believes that the police had acted reasonably. Since there are plenty of reasonable regulations on the Second Amendment (e,g,, barring “violent felons” and the insane from possessing guns), Rodriguez was a reasonable ruling that does not infringe the core of either the Second or Fourth Amendments.

As much as I respect Mr. Branca’s work, I think he dismisses Mr. Pratt’s concerns too breezily. A matter in which police detain a law-abiding concealed carrier just because he’s been ‘made’ by a cop has to be Second Amendment concern.

So I decided to look more closely at the Rodriguez case, as recounted in the District Court’s decision in 2011, and the Appellate Court’s opinion from 2013 (Gorsuch participated in the latter.)

Manuel Rodriguez was an employee at a convenience store in a high-crime area of Albuquerque, New Mexico. One day, he decided to carry a firearm concealed in the waistband of his trousers (sans holster) to work. Rodriguez, however, was an ex-felon prohibited by federal law from possessing a firearm. Further, his .357 Magnum revolver was stolen property.

Rodriguez apparently took to showing off this shiny revolver to a friendly co-worker. A woman noticed this display, and called 911 to report that two “Arabic” people in the convenience store were showing handguns to each other.[1]

When Frank Munoz, the responding police officer, entered the convenience store, Rodriguez was bending over stocking shelves. Coincidentally, Rodriguez’s shirt rode up just enough so that the officer could see the revolver. Munoz asked Rodriguez to step outside, disarming him on the way out “for officer safety.”

During their conversation outdoors (the words of which were captured by Munoz’s belt recorder,) Rodriguez explained that he was carrying a firearm for self-defense because he had almost been shot by someone the other day. Rodriguez also admitted that he did not have a license to carry.

To the amazement of open-carry activists everywhere, Officer Munoz explained that while under New Mexico law, law-abiding persons did not need a license to openly carry a firearm, they did need one to carry a concealed firearm.

Noticing that Rodriguez had “tattoos that would have been done inside a prison facility,” Munoz asked if Rodriguez had ever done time. Rodriguez admitted that he had.

Shortly thereafter, Munoz arrested Rodriguez, and he was charged with violating New Mexico’s law against carrying a concealed loaded firearm as well as possession of a stolen firearm.

The relevant part of New Mexican law states:

A. Unlawful carrying of a deadly weapon consists of carrying a concealed loaded firearm or any other type of deadly weapon anywhere, except in the following cases:

(1) in the person’s residence or on real property belonging to him as owner, lessee, tenant or licensee….
(5) by a person in possession of a valid concealed handgun license issued to him by the department of public safety pursuant to the provisions of the Concealed Handgun Carry Act….

B. Nothing in this section shall be construed to prevent the carrying of any unloaded firearm.
C. Whoever commits unlawful carrying of a deadly weapon is guilty of a petty misdemeanor.

The lower court held that the fact that the officer saw the gun on Rodriguez gave the police sufficient ‘reasonable suspicion’ to justify the stop and disarmament that led to the arrest.[2]

Rodriguez appealed, claiming that Munoz’s initial detention of him was not justified; even though the Officer saw that Rodriguez had a firearm on his person, the officer had no idea whether or not the gun was stolen, that Rodriguez was a felon, that he didn’t have a license to carry, or even that the firearm was loaded.

None of those facts had been communicated by the woman who called 911 to report that she saw “Arabic” men with a gun, and the fact that he was carrying a gun wasn’t enough to create reasonable suspicion of a crime that would justify Munoz’s detention (and disarming) of Rodriguez.

A three judge panel – including Judge Gorsuch – heard the case. They unanimously affirmed the lower court’s decision. (The decision written by Judge Bobby Baldock; Gorsuch did not write a separate opinion.)

The Court held that Munoz had all the reasonable suspicion he needed to detain and disarm Rodriguez because he saw with his own eyes that Rodriguez was carrying a concealed firearm.

They didn’t care that Munoz could not have had knowledge of whether or not Rodriguez might have had a license, or any of the other factors that could’ve made the behavior innocent, essentially saying that since New Mexico had criminalized concealed carry of a firearm, the fact that it had carved out exceptions to the crime (excluding people who had a license,) did not matter.

When an officer observes potentially criminal behavior, he does not have to negate the laundry list of possible exceptions to every law; he just has to reasonably suspect that a crime may be in progress.

In this case, Rodriguez was attempting to conceal a firearm. Since that’s the exact thing that is outlawed in New Mexico (with a few exceptions, including having a license), that’s all Munoz needed to have enough reasonable suspicion to justify the temporary detention. The stop passed constitutional muster.

The 10th Circuit also held that the disarming of Rodriguez was justified in terms that even Col. Jeff Cooper might appreciate, despite everything.

A prudent officer under the circumstances confronting Officer Munoz could reasonably suspect Defendant’s handgun was loaded rather than waiting to find out, thus providing the officer all the suspicion he needed to seize Defendant based on a violation of § 30-7-2(A).

One of the basic rules of gun safety promulgated worldwide is to “[a]ssume every gun to be loaded…and treat it accordingly….” Moreover, that Defendant’s handgun was probably loaded is simply a “common sense conclusion[] about human behavior” that Officer Munoz reasonably could draw from the fact Defendant sought to conceal the gun on his person.

The principal purpose of carrying a concealed handgun is to assail another or defend oneself. An unloaded firearm serves neither of those purposes well, making the fact that Defendant’s handgun was loaded a distinct possibility.

After all is said and done, I agree with Mr. Branca — to a certain extent.

The decision was correct in finding that the stop was reasonable under the Fourth Amendment. If you’re going to criminalize concealed carry of a firearm, it’s pretty reasonable to let police occasionally detain law-abiding citizens when the LEO notices that someone’s trying to conceal a firearm. How’s the law supposed to be enforced otherwise?

At the same time, I don’t see how this case doesn’t implicate the Second Amendment.

Mr. Pratt is also right: the result of this decision is that police in the 10th Circuit will have a much free-er hand in stoping and frisking law-abiding gun owners just because the Five-O happened to notice a concealed heater.

I’ve had a conversation like that in the past year, and while everything went fine, it wasn’t the most enjoyable five minute chat I’ve ever had. Afterward, I had to do some fast talking with the work colleagues present when I was “briefly detained.”

It’s not fun. It raises the personal, emotional, and (if things go sideways) financial costs of carrying a gun for self-defense purposes. The phrase “chilling effect” comes to mind.

With all that said, though, after reviewing Rodriguez, my attitude of cautious optimism toward Gorsuch hasn’t changed. Here’s why:

First of all, the Second Amendment was never actually raised by Rodriguez’s lawyer as a defense. In fact, the 10th Circuit went out of its way to note that fact:

Defendant has never challenged Officer Munoz’s actions, or the state law applicable thereto, as contrary to the Second Amendment.

U.S. v. Rodriguez, 739 F.3d 481, 484 n.1 (10th Cir. 2013).

If there’s one thing I learned in my own years of practice, it’s that you can’t expect a court to point out and embrace defenses for your client that you could, and should, have raised yourself.

That’s not how the system works. The burden is generally on each party (through their counsel) to present to the court all of the relevant facts and law (yes, with a bit of spin indicating how it proves their side of the case).

As it happened, the lower court had taken notice of the Second Amendment, but dismissed it, essentially saying: we can’t let it get in the way of police who gotta police. United States v. Rodriguez, 836 F.Supp.2d 1258, 1284 (D.N.M. 2011).

Here’s why I draw comfort from this:

The 10th Circuit could’ve openly endorsed the lower court’s off-the-cuff remark here. They also could’ve simply remained silent on the issue, since no one briefed the issue for them. They didn’t do that.

Instead, they pointed out the fact that defendant never even mentioned the Second, so everyone was on notice that it didn’t enter into their evaluation of the case. They were actually going a little above and beyond here.

It would’ve been great if Gorsuch had written a separate opinion and talked about how the Second Amendment might’ve impacted this case, just as he did in the Games-Perez case I discussed earlier.

He didn’t, though, and that’s okay. Gorsuch appears to be a judge who sticks to the facts, applicable law, and the arguments presented in the case. If you want a judge who makes a habit of going beyond, who looks for legal rationales beyond what’s in front of him, who will ignore precedent when it suits him, and who will dismissively wave aside counsel’s arguments in favor of what he would’ve said, had he been making the argument…well, what you’re looking for is an so-called ‘activist’ judge along the model of Justice Stephen Breyer, who believes that the Constitution itself is a malleable, “living” document, the meaning of which evolves depending on the mores of our times.

That also presents gun rights advocates with a little bit of a dilemma.

For all the rhetoric put forth, do we really want a conservative textualist who follows precedent? Or are we all secretly okay with the concept of an activist judge, but just want one who will be on our side?

Shelby Foote.

The dilemma is illustrated in a little anecdote that historian Shelby Foote recounted during Ken Burns’ Civil War miniseries (paraphrasing from memory here:)

A young Confederate private in the Army of Northern Virginia was brought to General Robert E. Lee for some infraction of the rules. He was obviously nervous and intimidated to be hauled before such a personage as the great General.

“You don’t need to be afraid, son,” the General assured him, “you’ll get justice here.”

“Yes, General, sir, that’s what I’m afraid of, sir,” the young Private replied.

As much as it would feel good to have an activist court smash down a few cherished left-wing precedents, the law has a long memory, and justices only get more liberal as they get older. Once a bad precedent is set, it can take generations to get rid of it. Perhaps someone with a conservative legal style and temperament is a safer bet all-around.

Despite all of the progress made in the past generation, the Second Amendment (and arguably the rest of the Bill of Rights) has already suffered a thousand cuts, many of which are embedded in prior Supreme Court decisions. Even Justice Scalia, Antonin Magnus, the great liberator of the Second Amendment, famously wrote in the Heller decision:

nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms

Think about that: even if we had a Supreme Court full of Scalias, they would still give the benefit of the doubt to laws like New Mexico’s.

That’s why the 10th Circuit’s decision in Rodriguez is pretty logical: a certain act is outlawed, the cop saw it being done, so he briefly detained the suspect to investigate. Guns can be dangerous, so he disarmed the suspect along the way. The defendant didn’t bother putting forth an argument about the Second Amendment, so that’s that. Easy decision, let’s all go home for lunch while the law clerks check the citations.

At root, it isn’t the Court who’s empowering police to stop law-abiding gun owners; actually, it’s the New Mexico legislature, the Michigan legislature, the Texas legislature, the Pennsylvania legislature, the Florida legislature, and yes, the New York and California legislatures, who have passed laws generally outlawing concealed carry of a firearm even by otherwise law-abiding citizens not prohibited from owning a gun by federal and state law.

It is the fault of we, the people, who continue to elect state legislators that are either indifferent or hostile to our rights.

If you want to avoid the issues about which Mr. Pratt is concerned, what we need is a nationwide push for Vermont-style Constitutional Carry. Get rid of the crime itself, and law-abiding gun owners won’t be thrown up against the wall just because their 1911 was exposed when they reached for a box of cereal at the Whole Foods.

We now have nine states in which full, permitless carry is the law of the land, and two others in which it is limited to residents. The issue has been a winner in New England, the South, the Mid West, and the far West. We now have more states in the Union that have Constitutional Carry than there were ‘shall issue’ states when I was born.

As much as an end-run around New York City via the courts would feel good, the truth is, there’s no more surer way to protect our liberties than to persuade the electorate at the grass roots level to take our side.

So on Judge Gorsuch, to the extent there’s a legitimate take-away from Rodriguez, it has reinforced my feeling that he’ll give us justice as demanded by the text of the Constitution, the text of the laws and precedent. I don’t think we can or ought to ask for more than that.

Just don’t forget: sometimes the law is an ass, and it isn’t always the responsibility of the Courts to un-ass it.


1. The other person involved was Akmal Awwad, who was either the owner of the convenience store, or the nephew of the owner (neither the lower court’s decision nor the 10th Circuit’s made clear which was the case.) Awwad was not charged with any crime arising out of the incident.

2. A good way to think about reasonable suspicion, is that it’s a hunch based on specific and articulable facts (and reasonable inferences from those facts,) that would lead a reasonable person to believe that a crime might be underway or might have taken place, which can justify, under American constitutional law, an officer’s brief detention of a person.

This is distinguished from probable cause, the much-higher standard which is used, constitutionally, to justify an officer’s arrest of a person. The arrest is justifiable if it is based on knowledge that would lead a reasonable person to believe that a specific person, more likely than not, has committed a crime.

A “reasonable suspicion” scenario would be if I drove my beat-up old Chevy Beretta repeatedly around the block in front of a bank, slowing down to look carefully at the bank’s front entrance and take pictures with my cell phone. Arguably, an officer would have reasonable suspicion to pull me over and ask what’s what.

“Probable cause” would come into play if the officer did a check on my driver’s license and found that I was wanted in the state of Texas for murder. Which, of course, I’m totally not.

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  1. Great article, JP.

    Pratt’s concerns — and they are concerns, not necessarily criticisms — are justified.

    As to the question posited by the headline, we don’t know if Gorsuch will be good or bad for gun rights. We didn’t know if Scalia would be good or bad for gun rights before Heller and McDonald. We found out that Scalia and Alito were godsends for us. We’ll find out about Gorsuch in due course.

    • “We’ll find out about Gorsuch in due course.”

      That’s pretty much where I’m at.

      The other justices will ‘feel him out’ on where he stands on the 2A.

      We’ll get a better idea based on what cases SCOTUS grants cert. to, but that won’t really say much until another known liberal justice or Kennedy is replaced.

      And that just may happen sooner instead of later. Speculation I’m hearing is that if Kennedy feels the court is in safe hands he will retire. Then we replace Kennedy with Diane Sykes and start making progress…

      • Andrew Napolitano endorsed him. Napolitano is a radical libertarian and very well studied in the law. Good enough for me until I see otherwise.

        • When I read Napolitano’s first book, I was shocked to discover his positions. They are the most conservative legal positions I have ever encountered.

          If I was president, I would nominate people like him to the bench. I wouldn’t nominate him because he is too old by about 10 to 16 years.

  2. Exactly what I was about to type Frank. Wait and see. Mexican felon with a gat does not appear to be something we should excoriate Gorsuch for…

  3. So NM outlaws carrying a gun unless it by a licensed individual, and it’s ok for an officer to check? Do they outlaw driving a car and can an officer pull over an otherwise lawful looking driver to check if they have a license to drive?

    • If they receive a 911 call about it you can be damn sure they will stop and check, even if no citation is written.

      The 911 call is the impetus for the stop. Without it, there is no cop, no stop, and no arrest. And without moron Sanchez showing off his stolen and illegally possessed handgun there is no 911 call. In short, he broke the golden rule of American law: Don’t shit where you eat. In NM, you are required to present your ccw when requested by an officer. The moment he did not (or more precisely could not) produce said document the cop had him dead to rights. I have zero sympathy for someone compounding stupid on top of stupid and getting caught.

      Put it another way: lets say that was your stolen gun he was caught with. Still feel bad for him?

      • To begin with, NM does NOT outlaw carrying a gun unless licensed, they outlaw CONCEALING a gun unless licensed. So a patron observed his gun and someone else’s, it was clearly *not* concealed and the 911 dispatcher should have told her that activity which she reported was perfectly legal, and dropped it. Instead, an officer was dispatched, who instantly observed the gun, meaning it was NOT concealed, no law broken, and so on. Yes, that is not what this post is about, but it still pisses me off. The fact it’s described as a “petty misdemeanor” helps a lot.

    • Omer: an excellent observation. If they *did* have a statute outlawing driving a car, and merely made an exception for folks who had a license, perhaps what you say would be the case.

      It turns out that the choice of wording in a statute actually matters! Who knew???

      Perhaps that’s a good reason why anyone who suggests that we ought to pass a law first before finding out what’s in it is asinine?

    • Having lived in the state for some time and with parents who still do live in the state I would tell you this:

      While there are bad apples in every bunch, even in Santa Fe, cops are generally respectful of gun rights.

      The law on carrying of firearms (and blades) in NM is, quite frankly, not bad at all in comparison to other places. At this point in time it’s better than Texas, Ohio or Colorado as well as the states that make news on TTAG all the time, obviously. That doesn’t mean it’s everything I’d like but prohibitions against concealed carry are relatively old and are a throwback to the days when it was thought that a gentleman open carried while concealed carry was for thieves, card swindlers and other brigands.

      New Mexico had unrestricted carry until concealed carry while on foot (w/o a license) was made illegal in 1953. That’s a point in time where most Americans didn’t believe the 2A covered a handgun in the first place.

      It always was, and remains legal in your car (an extension of your property) on your horse or anywhere else that you are on “your property”. You cannot carry a loaded and concealed firearm when you dismount your horse or leave you car/property unless you are licensed. You can however OC anytime and pretty much anywhere you want. Which is better than say Texas *cough cough*.

      New Mexico is interesting in the regard that it’s government is effectively and old boys club and that club has retained a lot of the ways of thinking that existed when the area was a territory. (Prior to 1912). Sometimes that’s good, sometimes it’s bad. However considering the liberal views of the legislature and most of the citizens of the capitol (Santa Fe) the fact that the state doesn’t have California-like laws on weapons is somewhat surprising and owes to the Constitution of the state and the fact that the legislature is non-professional (part time).

    • No, it is illegal to pull someone over to check and see if they have a driver’s license because not having a license is an exception to the rule, statistically speaking. If it was the case was made that the majority of people carrying concealed had a license to do so, then it would be unconstitutional under the 4A to stop someone carrying concealed. That’s just based on my analysis of precedent, and I don’t know what evidence exists to support that proposition.

      My analysis is that cars are more dangerous than guns; therefore, the government interest is greater in stopping drivers to check they’re licenses than concealed carriers if the license to user rates are similar. Since it is a violation to stop drivers to check for licenses, it would be a greater violation to stop concealed carriers.

      Would most courts accept my argument? Probably not because guns.

  4. Call your senators and demand some tough questions during his hearing next month. Democrat ones too: Dividing Republicans on a weak 2A supporter and being able to call him a nut are both something they want.

    US v. Miller
    Wicard v. Filburn
    What he meant by “shall not be infringed lightly”

    • What he meant was that was the precedent from Scalia. He was quoting a Supreme Court case and following Supreme Court precedent. Which is an appellate judge’s job.

      Following precedent does not tell us what a judge would do on the Supreme Court. Ignoring precedent does.

  5. Slamming someone to the ground while his arm is still holstered is not a vision of America, it is a vision of what all of us are afraid that the Patriot Act will allow.

    • The facts of the case seem to indicate his firearm was NEVER holstered, as the felon had no holster, so I’m not sure why you’d make that claim.

      Unofficially, in many LE circles, carry without a holster is another sign that the gun is probably being carried illegally, as lack of a holster makes it easier to ditch/drop/lose the weapon in a hurry and then claim ignorance, if the perp ever gets chased by the cops.

      • I always wondered why criminals didn’t carry in a holster. This is the first reason beyond simple stupidity I’ve seen.

  6. Honestly, YES, I do want an activist who votes my way! :). I’m an honest enough soul that I will admit that. I’d love to get an unassailable majority in Congress that votes my way, so we could nuke the filibuster and repeal Hughes and the NFA. The harsh reality is that power changes hands. That’s the nature of a Republic. So I lieu of my wants, I’ll besatisfied with a guy whom cleaves as closely as a reasonable human can manage to Constitutional principles and take my chances on whether or not that meets my needs on any given day like everybody else. It’s better than an activist judge on the other side.

  7. I think Judge Gorsuch is an unknown on guns, and that’s bad. Unfortunately the senate has gotten into a trap of allowing nominees to refuse to answer questions that should absolutely be asked during a confirmation so we’ll never know anything about how one will rule based on such hearings.

    As a sidenote, to a cop, ‘mexican carry’ almost yells “criminal.”

      • Mexican squared, or M squared, carry.

        I don’t want to do the math for a Mexican carrying Mexican with a New York reload.

        • 13^2 x C x 2R + B where R is the number of rounds each gun, C represents the number of cousins this guy has within 50 yards and B is his belt level in Mexican Judo.

          Mexican Judo is the most dangerous martial art in the world. Judo-know if he’s got a knife, judo-know if he’s got a gun…

  8. Did I somehow miss the part in the account of Mr. Rodriguez’s arrest where he was mistreated by “grabbing him, twisting his arm behind his back, slamming him down on the ground, and handcuffing him.” as Mr. Pratt says will happen? Or was that simply a case of egregious hyperbole?

    Mr. Omer – If someone tells a cop that the driver of a vehicle has no license I think most cops would make a traffic stop to check to see if the driver is licensed. What the officer did in the Rodriguez case is comparable to that. He was dispatched to a call of a “Man with a gun”, observed the firearm, and also the prison tats he was sporting. No cop worth his badge would not investigate further AFTER disarming the man for the officer’s safety.

    • For what it’s worth: According to the facts recounted in the lower court and the Appellate court, Mr. Rodriguez appears to have been treated reasonably. The cop asked him to go out; after a moment or two of conversation (he pointed out that he was working and had to stack the shelves,) he agreed. It did not sound as though he was mistreated, and (for whatever it’s worth) Munoz reported that Rodriguez seemed pretty blasé during their chat. The courts certainly didn’t think that was an issue. I think the only real ‘physical’ contact they had before the cuffs were slapped on was the moment where Munoz disarmed Rodriguez on the way out the door.

      (Munoz did have a recording of the stop, which everyone was apparently able to access.)

    • I think it was theoretical, but a reasonable point to bring up. If a police officer has a power to do something- detain someone, for example- eventually someone will resist and force will be used. So if an officer has the ability to legally disarm someone without discerning the legality of their carry, it’s just a matter of time before those things do happen. And if we’re not okay with someone being forcibly arrested\detained given a set of legal circumstances then we should consider whether we’re okay with the detention in the first place.

      It’s sorta like the laws against selling loose cigarettes in NYC. Cops had probably given people tickets or arrested them for that thousands of times- but eventually they found someone who didn’t want to go along with the system and suddenly everyone is aghast that such a silly law is being used.

    • According to the post (I sure don’t know NM law), open carry is legal, “man with a gun” should not get a response from LE.

      • Open carry is legal. Concealed carry is legal with a license, and a few other exceptions. Our law also states that a officer may ask to see our CCW at any time.

        One other thing to mention. If the store sells alcohol, then open carry is not legal at all.

  9. “It is the fault of we, the people, who continue to elect state legislators that are either indifferent or hostile to our rights.”

    Not really — it’s the fault of the 0.02% of the people who hold the ‘election’ that counts, the one to get money to finance campaigns. Until that’s changed, the only thing we the people can do is to choose among the candidates already found acceptable to that 0.02%.

    • An article should be whatever length it needs to be to properly address the subject. This article neither left me with questions that were within its purview to answer, nor was it repetitive or redundant. As such it was, as Goldilocks would say, “just right.”

      If you prefer to read click bait articles that are short, fluffy, and say nothing, feel free to return to Facebook.

  10. Personally I’m with a bunch of the others here. There’s no real way to know for sure until he’s on the court and makes a ruling.

    Some people may not like that, but it’s true about anyone who might be nominated. Numerous people have “changed” or “evolved” once they got on the court so there’s no real reason to believe that their history is an absolute guidepost to how they will rule once they get to the SCOTUS.

    All you can do is pick someone who seems good and hope they stay that way.

    • The closest you can get to knowing is by looking at a case of first impression. Like all the cases going beyond Heller. Like the judge on the Ninth Circuit who keeps getting his panels overturned on the en banc rehearings. (I forget his name).

    • While I tend to agree, we should also be aware that no one is asking us. He will be confirmed, he will be seated, and in 2020 (if not 2018) we will be able to weigh in again. If he turns out to be a POS, looking back at these critiques may give us a tiny insight as to whether Trump should have known better, otherwise is useless.

  11. Truth is, we will not know the true test of Judge Gorsuch’s metal until it is far too late to do anything about it. I expect he will be better than anyone the other candidate would have appointed.

    Our failure has been in hoping judges would do the “right thing,” rather than making sure our elected representatives did the right thing.

  12. In terms of his background (super smart, Ivy guy, primarily career government worker with no real world experience), I rate him near, but above, Roberts on the low end of the conservative spectrum defined by Alito on the much higher end.

    I expect Gorsuch will generally follow the Constitution, which is an inherently conservative approach to jurisprudence in the first place. However, I also anticipate he’ll hold precedent in high regard, too. Normally that would be good, except that so many precedents are themselves unconstitutional. Even good ones like Heller were watered down to win a majority. Hence the 4th Circuit’s ruling yesterday.

    With Gorsuch, Trump has hit a solid double, who may turn into a triple, and should get batted in eventually. However, we’re not talking about a home run here and certainly not a grand slam.

    I’m looking for a justice who won’t just hold the line, but will return to originalism. I don’t want containment; I want to roll back the anti-constitutional evil liberal empire.

    It isn’t “activism” to chart a constitutional course. It only seems that way to those who’ve strayed so far for so long that they don’t even recognize the Constitution.

    • Jonathan- Great commonsense analysis.

      “I don’t want containment; I want to roll back the anti-constitutional evil liberal empire.”

      That would involve winning, and most NRA members if not most gun owners are not capable of conceiving how to win, much less figuring out who their enemies are. Maybe it’s an age related thing, maybe it’s the lack of education, maybe it’s the small town mentality of conforming to the group.

      Since the draft ended after Vietnam, the vast majority of the American population has never been in the military, and they flat out don’t know how to fight or beat their enemies.

      After watching the man-made disaster of Illinois’ 2013 concealed carry bill, it’s obvious that most gun owners have G.E.D. level education at best. They don’t want to carry a gun legally, they want to have a piece of plastic in their wallet that makes them junior policemen.

      • Wouldn’t your argument be better if you gave us some clue WTF you were talking about? There were problems with some bill in IL? Gun owners are morons? WTF makes your sorry ass think so? Exactly when did cc holders pretend they were police? Are you on drugs?

    • Constitution as modified by precedent, actually, is constitution. I cannot ask for more. Precedent is going to get in the way of anti-choice advocates, however.

  13. Well done, Mr. Paulson. Thank you. This is the best evaluation of is case I’ve read. It leads me to conclude the holding is right in line with Terry v. Ohio and its progeny. I feel better about Gorsuch now.
    You’re right, we don’t need activist judges on the right or left, just those who will deal with the statutes as written.

  14. Hopefully, the SCOTUS, and Constitution, will remain in the comforting hands of the conservative for a generation or two.

  15. In FL it’s a crime if you get made with a CCW. So the officer would have had every right on the spot to arrest the guy even if he had a permit and legal gun.

    • Citation please?

      In Florida, unintentional display of a concealed firearm (which absent the AWAG* phone call, is what this was) is explicitly not unlawful as of about 5 years ago.

      *Arab With A Gun

      • But Matt, in FL open carry is ILLEGAL, permit or not, while in NM (according to this post) unlicensed OC is not restricted! Can we not see the MASSIVE difference, there? The firearm was not effectively concealed, therefore no crime was committed, since OC is legal. Case closed.

  16. This judge is a weak choice, though not a bad one. There are many areas of law in need of repair, but gun control in particular is an issue that touches tens of millions of people in all fifty states, constitutes a huge financial and legal liability when you look at it as a whole, and is utterly overgrown with unjustifiable precedent and illegal abuses of official power in the thousands of statutes that it is composed of. With unprecedented popular and congressional support for gun rights, with the promise of a SCOTUS justice nomination intended to correct these last hundred years of abuse, a reliably conservative justice with a moral conservative bent and orginalist outlook is a decent choice.

    But a cowardly one. I don’t think many voted for Trump in the hopes he would appoint a “safe, reliable conservative” like Roberts to the bench. I was under the impression Trump supporters expected an unabashed, unapologetic defender of our civil liberties as originally intended and codified. Gorsuch may be a fine justice, but he is not that kind of justice. Like most conservative members of the court, his first instinct will be to defend and strengthen the status quo (composed of centuries of unjust precedent and abuse of power) against further deterioration, and with little appetite for reversing it. That is how it has gone since the beginning; one side playing for advocacy and ‘progress,’ the other seeking to merely hold back the tide.

    Considering there are actually reliable pro-gun judges/lawyers out there that understand the issue, and understand the stakes as well as the history, Gorsuch is, again, a bit of a cowardly choice. I’m unimpressed if he is the best opening ‘bargaining position’ Trump feels he can put forward in his administration.

    • barn- Good commonsense analysis!
      The last time “conservatives” actually tried to win that I remember is when Ronald Reagan was President. “Conservatism” as a party philosophy is doomed, because there is almost nothing left to conserve. Examples: transgender bathrooms, Heather has two mommies, etc.

      “…gun control in particular is an issue that touches tens of millions of people in all fifty states…and is utterly overgrown with unjustifiable precedent and illegal abuses of official power in the thousands of statutes that it is composed of.”

      Agreed. Look at the vast majority of state’s carry laws especially, and you will see that most are basically written by police unions, not legislators, with the collusion of traitorous orgs like NRA.

      “Like most conservative members of the court, his first instinct will be to defend and strengthen the status quo (composed of centuries of unjust precedent and abuse of power) against further deterioration, and with little appetite for reversing it.”

      Agreed. The practical effect of this type of nomination may be to very slightly slow down the legal infrastructure of the criminal police state, but not dismantle it.

      The purpose of concealed carry licensing especially is to create a database of the most politically active gun owners for future control and investigation. Hence the almost unlimited privacy waivers in most state’s carry laws. The police want to be able to nose around the backgrounds of “troublemakers.”

      “…one side playing for advocacy and ‘progress,’ the other seeking to merely hold back the tide.”

      Conservatives can no longer win, the only way to win is populism or nationalism. Otherwise it all ends up with the United States of Mexico, or the North American Union, with no rights at all and no Constitution.

    • Sorry. If *you* were voting for extremist fanatic provisions and “interpretations”, I was not. In either direction, I was not. Realistic interpretations of the original text as modified by precedent, no more, no less.

  17. Branca’s comments about the 4th amendment do not comfort me. The 4th specifies Probable Cause, but has, by precedent, been degraded to reasonable suspicion to all kinds of affronts to the Constitution. Note the recent leakage of General Flynn’s call to a Russian Diplomat if you think you are secure in your persons, houses, papers, and effects

    Gorsuch is a stop gap, until we have a Chief Justice willing to act as if Article VI Clause 2 really means the Constitution is the Supreme Law of the Land, and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.

    Until the Chief Justice who believes that actually writes an opinion (or most probably a dissent) that holds this as truth, we are doomed to an erosion of our rights

    • Johnny- “The 4th specifies Probable Cause, but has, by precedent, been degraded to reasonable suspicion to all kinds of affronts to the Constitution.”

      Probable cause means whatever a cop says it is.
      In “America” as we know it today, police routinely lie to the court and/or kill citizens with almost no legal justification, then are not ever charged with a crime, much less tried and sent to prison.

      Most then keep their jobs. Chicago police detective torturer Jon Burge is collecting his pension right now in federal prison.

      As we see in most state’s concealed carry laws, the police unions are effectively writing the bills in collusion with traitorous orgs like NRA to the disadvantage of citizens who pay the taxes.

  18. “The decision was correct in finding that the stop was reasonable under the Fourth Amendment. If you’re going to criminalize concealed carry of a firearm, it’s pretty reasonable to let police occasionally detain law-abiding citizens when the LEO notices that someone’s trying to conceal a firearm. How’s the law supposed to be enforced otherwise?”


    No. Concealed Carry in the state of subject was not criminalized. It is a criminal act without a license. Not different that say… Driving. Is driving criminalized? No.

    By your logic it would be proper for police to occasionally detain law abiding citizens attempting to drive. After all, how is the law supposed to be enforced otherwise?

    Hur de durp… Brilliant legal minds at work.

    • Carrying concealed is illegal there. Having a license is an affirmative defense against the charge. There is a legal difference between a constitutional carry state where carry is legal unless otherwise prohibited by law, and a state where its legal only with a permit. In states like that its presumed illegal until proven otherwise. This is why Texas needed that “4th Amendment exists, you need probably cause to stop” addition to our open carry law. Hopefully we fix that this year with Constitutional Carry and fully reenter the US after 160 years of probation.

      • I’ve heard the affirmative defense logic applied, specifically to NFA items. I know a court had an opinion on NFA and said it was defacto illegal and having the stamp was an affirmative defense.

        First, I did/do not know that it applies here – can you/do you care to back that up? Is a drivers license and affirmative defense to driving illegally? If not, why not?

        Second, I wholeheartedly disagree with said court opinion and emphatically hold their opinion is wrong, fatally flawed, and would be overturned if challenged. I acknowledge my opinion isn’t law and theirs has the weight of precedent. I will just say, there are illegal laws that have been unchallenged or haven’t been successfully challenged and this is an example of a false premise.

        The entire idea mental gymnastics. If true everyone with an NFA item could be indicted tomorrow, being forced to present an affirmative defense. This is laughable on it’s face. If a US Attorney did this, which that opinion says they could, the courts would rain hell down upon the DOJ for doing so and I am sure the absurdity of the exercise would result in the obscene opinion to be immediately reversed.

        Having an NFA item with an approved stamp from the ATF is not illegal. That’s factual. That is logical. The court is wrong, the premise is wrong and it clearly and predictably results in illogical unjust results that belay the purpose of law and even our constitution.

        • Driving without a license is illegal in New Mexico unless you have some defense (like necessity, maybe). Carrying concealed is illegal in New Mexico unless you have some defense (like a license).

          The opinion goes over relevant New Mexico law, which is controlling on federal judges. Under New Mexico law, the cop was in the clear and could have arrested him without further investigation when he saw the gun.

        • “Driving without a license is illegal in New Mexico unless you have some defense (like necessity, maybe). Carrying concealed is illegal in New Mexico unless you have some defense (like a license).”

          Does that mean a LEO witnessing someone driving, the LEO can then stop and detain them on the basis they have RS for them driving illegally?

        • Yada: No, driving is only illegal if you don’t have a license. Concealed carrying is illegal in NM. In one (carrying) having the license is the legal exception. In the other (driving) not having the license is the exception to the law. Also, there is a Supreme Court case saying that the vast majority of people driving have licenses, so 100 people to find one without a license would be unreasonable.

          Larry: Read the case; it explains it. The NM Supreme Court specifically ruled this. Their interpretation of NM law is controlling. He was concealed carrying. When he bent over; he exposed the gun that was concealed; he stood up; the gun was concealed once again. I do it all the time when I don’t care if my gun is exposed (because it’s legal and situational reasons).

        • “the cop was in the clear and could have arrested him without further investigation when he saw the gun.”

          When he saw the gun, it was clearly not concealed, or he would not have seen it. Carrying a gun which is *not* concealed is not illegal in NM. So how could the cop arrest him “without further investigation”? As in, on what charge? “I saw his concealed weapon”? Don’t be ridiculous! We have a bunch of different folks from different states with different laws all pretending the case here was under the laws of their own states. Unlicensed OC=fine, unlicensed CC=BAD. Now start over.

  19. “do we in the gun rights community really want a conservative textualist who follows precedent? Or are we all secretly okay with the concept of an activist judge, but just want one who will be on our side?”

    Had you asked me this when I was 22 I would have said that I wanted principled justices. Now that I am older and have seen both Republicans and Democrats vote to take away my 1st, 2nd, 4th, etc rights I am fine with doing whatever it takes to win.

    I don’t care if the judges are activists, if my district is gerrymandered, or if there is voter suppression. As long as come the end of the day those actions favor my personal freedom I will support them.

    I am no longer foolish, government is not a tool to be used for good. It is a weapon used to crush your enemies. If the enemies of civil rights can be crushed I will support it.

  20. “Is Supreme Court Nominee Judge Neil Gorsuch Good or Bad for Gun Rights?”

    See if any of the Senators ask Gorsuch specifically about his 2nd Amendment views. If no questions are asked at his confirmation hearing, then the fix is in and he’s probably a shill.

    The fact that NRA, Inc. is ecstatic about Gorsuch is a sign that he may be a front man who will collude with police interests to legalize harassment of armed citizens.

    The constant modus operandi of NRA, Inc. is to achieve losses and half-wins, and advance the legal infrastructure for the criminal police state. NRA’s endorsement of Gorsuch is a reverse indicator that he is someone who may work against the interests of gun owners.

  21. Interesting to me is that we seem to be flirting with something similar to prior knowledge at certain points. That is, if I don’t know that someone who is attacking me is a dogknapper/murder/ninja assasin/etc while they are attacking me I can’t use that as a reason why I needed to use X level of force against them to defend myself. Here the court seems to be saying you don’t need prior knowledge of a crime or the individual to assume that everyone is carrying illegally until proven otherwise. That basically cements having a permit as an affirmative defense.

    I agree with Pratt overall, the court basically is giving a blank check to detain and search for no reason other than knowing the individual has a firearm especially because the impetus of this whole affair was a 911 call from someone anonymous who claimed they saw a gun. It worries me there is too much room for abuse.

    • Matt- “…assume that everyone is carrying illegally until proven otherwise.”

      That’s the point, to justify the criminal police state where everything you do is potentially illegal, unless you can produce your “license” or “papers.”

      “That basically cements having a permit as an affirmative defense.”

      Meaning you can be detained, questioned, harassed, disarmed and/or shot “accidentally” with legal cover, then hire a lawyer on your own dime and prove to the court that you had your concealed carry license all along.

      “I agree with Pratt overall, the court basically is giving a blank check to detain and search for no reason other than knowing the individual has a firearm…”

      That’s the whole point, to codify and enlarge the criminal police state, where everyone is a potential criminal, not based on their actions, but based on what their actions may or may not be at some point in the future.

      “It worries me there is too much room for abuse.”

      That’s the point, to encourage police to abuse citizens and keep them in fear of exercising their basic rights. If it were up to police unions, you would need to file a flight plan and hold a passport to leave your house and buy groceries. Control over the population is always the goal.

  22. Well, just keep accepting the fallacy of the Incorporation Doctrine as settled law and you will eventually lose the RKBA or have it so altered you will not recognize. The federal government is NOT your liberty enforcer and going hat in hand to it for items not in its enumerated power continually and consistently weakens liberty and what is left of federalism.

  23. “If there’s one thing I learned in my own years of practice, it’s that you can’t expect a court to point out and embrace defenses for your client that you could, and should have, raised yourself.

    That’s not how our adversarial system works. The burden is generally on each party (through their counsel) to present to the court all of the relevant facts and law …”

    I learned that before I graduated from law school. Often, judges won’t raise an issue even when specifically authorized to do so.

  24. The fact that the court noted that the 2A was not brought up or considered in this case is signaling/hinting that the case would have been decided differently if it had.

    I’ts like flirting. You don’t know for sure what’s being offered, but you have a good idea. Then again, the court could just be a tease.

  25. what Branca wrote was that to exercise your 2A is to justify a transient suspension, i.e. Terry Stop, of your 2A while police check your papers.


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