2012 case highlights Supreme Court nominee Neil Gorsuch's 'pro-gun' record
WASHINGTON — Advocates for and against gun control agree on this much: Supreme Court nominee Neil Gorsuch is a "pro-gun" judge and the proof is a 2012 court case in which he sided with a felon busted with a gun.
As a Circuit Court judge, Gorsuch found an unusual argument in that case compelling: The felon said he didn’t know he was a felon, and was thus unaware that he was barred from having a gun.
Gorsuch argued the law requires the government to go beyond prior precedent and prove the defendant knows he’s a felon — not just that he knew he had a gun.
Gun-rights advocates say his role in U.S. v. Miguel Games-Perez proves his deep commitment to the Second Amendment, and they plan to fight for his confirmation. Gun control supporters say Americans should be concerned that he won’t even restrict gun rights for convicted felons.
“Judge Gorsuch’s views are so outside the mainstream that he has gone out of his way to side with felons over public safety,” wrote Pete Ambler, executive director of Americans for Responsible Solutions. “His irresponsible record indicates he would actually weaken the gun laws on the books.”
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The National Rifle Association, meanwhile, has pledged to activate is members and millions of supporters throughout the country in support of Gorsuch, whom President Trump nominated to fill the seat vacated by the late Justice Antonin Scalia.
“He will protect our right to keep and bear arms and is an outstanding choice to fill Justice Scalia’s seat,” said Chris Cox, executive director of the NRA’s Institute for Legislative Action.
Gorsuch, 49, has served on the U.S. Court of Appeals for the 10th Circuit since he was appointed in 2006 by President George W. Bush.
He was part of a three-judge panel that took up Games-Perez’s appeal in January 2012 after he had violated the terms of a 2009 attempted robbery guilty plea. His agreement with the court banned him from possessing firearms.
Denver police caught Games-Perez less than a year later holding a pistol with an obliterated serial number, according to court documents. Games-Perez argued he didn’t know he was a convicted felon because of an ambiguous discussion with a judge about his conviction.
Gorsuch reluctantly sided against Games-Perez’s appeal as part of the three judge panel, writing it was his duty to follow circuit court precedent, even if it is incorrect. Though he voted to affirm the lower court’s conviction, he still delighted gun rights advocates with his reason for why the government should have to prove a defendant knew of his prior felony conviction.
“After all, there is ‘a long tradition of widespread lawful gun ownership by private individuals in this country,’ and the Supreme Court has held the Second Amendment protects an individual’s right to own firearms and may not be infringed lightly,” he wrote, quoting Supreme Court rulings.
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In September 2012, Gorsuch argued the full 10th Circuit should rehear Games-Perez’s case, but he was in the minority.
“This court’s failure to hold the government to its congressionally specified burden of proof means Mr. Games-Perez might very well be wrongfully imprisoned,” Gorsuch wrote then.
Gun control advocates acknowledge that his record on such cases is mixed: He has also voted to uphold convictions for illegal gun possession by convicted felons in other cases. But they cite his role in Games-Perez and other cases as reason for their opposition.
"For anyone concerned with American public safety, the notion of Neil Gorsuch on the Supreme Court is a chilling prospect," said Robyn Thomas, executive director of the Law Center to Prevent Gun Violence.
Federal law says it is a crime to “knowingly violate” the ban on gun possession by convicted felons. But most courts have held that felons only have to know they possess a gun to be guilty of a crime, says Adam Winkler, a UCLA law professor who specializes in constitutional law. Gorsuch’s position in the Games-Perez case — that this precedent was wrong because of the constitutional right involved — is in the minority, Winkler said.
“It is evidence of his support for strong gun rights,” Winkler wrote.
Michael Hammond, legislative counsel for Gun Owners of America, said he helped draft the Firearms Owners' Protection Act as a Senate staffer in 1986 and insisted on inserting the word “knowingly” in the bill. Gorsuch, he said, correctly interpreted Congress’ pro-gun intent.
“He was the one member of the 10th Circuit who knew the pro-gun meaning of the statute and was able to take two pages to explain it,” he said. “It made a conviction harder because you had to prove the person knew they were acting in violation of the law.”
Hammond said any senator who opposes Gorsuch can say goodbye to their pro-gun credentials in their next election.
“We will make sure that we spend the next two years ensuring that anyone who votes to keep the seat open until a Democrat can appoint an anti-gun person to replace Scalia is viewed as anti-gun,” he said.
