The Volokh Conspiracy

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Volokh Conspiracy

Nancy Pelosi and gun control groups claim that Neil Gorsuch sides with 'felons over gun safety'


Supreme Court nominee Neil Gorsuch on Feb. 1. (Joshua Roberts/Reuters)

PolitiFact (Lauren Carroll) reports:

President Donald Trump's Supreme Court nominee favors felons over gun safety, says House Minority Leader Nancy Pelosi, D-Calif. …

"If you care about that for your children, he's not your guy," Pelosi said during a Jan. 31 town hall on CNN. "(Former Democratic Rep.) Gabby Giffords' group, the group for responsible solutions relating to gun safety, said that he comes down on the side of felons over gun safety." …

[Pelosi's] office sent us a press release that Giffords' gun control advocacy group, Americans for Responsible Solutions, put out along with the Law Center to Prevent Gun Violence.

"In his time on the 10th Circuit, (Gorsuch) made repeated efforts to weaken the federal law that's prohibited felons from possessing guns for the past 50 years, a law that has saved thousands of lives and enjoys near-unanimous support among Americans and elected officials on both sides of the aisle," wrote Robyn Thomas, the law center's executive director. …

PolitiFact explains why this is unfounded, and I think that's absolutely right. I talked about one of the supposed "favors felons" cases, United States v. Games-Perez; there, the law banned "knowingly violat[ing]" a prohibition on felons possessing guns, and Judge Neil Gorsuch argued—rightly, I think—that this required a showing that the person knew he was a felon. (Games-Perez was the rare case where there was doubt about such knowledge, because "a state court judge repeatedly (if mistakenly) represented to [Games-Perez] that the state court deferred judgment on which his current conviction hinges did not constitute a felony conviction.")

The case was fundamentally about reading the criminal statute and making sure that a person doesn't go to prison unless the government proves all the criminal statute requires. And that's a principle that's as important for felons as for others, and as important for gun possession crimes as for others. Gorsuch and some of his colleagues read the statute as it was written, and argued that the 10th Circuit should reverse an earlier decision that failed to require "know[ledge]" of the past felony conviction.

Another case, cited by a Law Center to Prevent Gun Violence spokesperson, and mentioned in a Everytown for Gun Safety/Moms Demand Action press release, is United States v. Reese (2014). But, as PolitiFact notes, "it takes a tremendous leap of logic to view this decision as an attempt to rethink the federal ban on gun possession by felons"; indeed, it would have been outrageous for Gorsuch and his colleagues to do anything other than they did, and even the prosecution agreed.

Under federal law, a felon can regain his gun rights under federal law if the state in which he was convicted restores 1) his gun rights under state law, and also restores his civil rights, his 2) right to vote, his 3) right to serve on a jury, and his 4) right to hold office. Here's what Gorsuch wrote, for the three-judge panel:

From the outset of this appeal, everyone has acknowledged that Mr. Reese enjoys three of these four rights. The only question we have faced is whether Mr. Reese is entitled to hold public office under New Mexico state law. Given the uncertainty of state law on that question, we certified it to the state supreme court.

That court recently returned an answer: at all points relevant to this case Mr. Reese has enjoyed the right to hold public office. In light of this guidance, the government acknowledges that Mr. Reese's federal firearms conviction is unsustainable. So it is we reverse Mr. Reese's conviction and remand this matter to the district court with instructions to dismiss the 18 U.S.C. § 922(g) charge against him.

So follow the law, as judges are supposed to do, and you'll get tarred as a supporter of criminals. That's bad when the right does this, and it's bad when the left does it.