A Message from the President of Americans Against Gun Violence
March 22, 2017

What Doesn't Judge Gorsuch Understand About "A well regulated Militia?"

The late Supreme Court Chief Justice Warren Burger called the misrepresentation of the Second Amendment as guaranteeing an individual right to own guns “one of the greatest pieces of fraud on the American public” that he had seen in his lifetime. In responding to questions from California Senator Dianne Feinstein during his confirmation hearing on March 21, Judge Neil Gorsuch, Donald Trump’s nominee to replace the late Antonin Scalia on the Supreme Court, demonstrated that he was a party to that fraud. Please contact your U.S. senators today and urge them to oppose the nomination of Neil Gorsuch to the Supreme Court. (Click on this link for your senators' contact information.) To learn more about Judge Gorsuch’s fraudulent misrepresentation of the Second Amendment during his confirmation hearing, please read on.

The Second Amendment states, in its entirety:

A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.

Prior to 2008, the U.S. Supreme Court had never ruled that the Second Amendment conferred an individual right to own guns. On the contrary, it had been repeatedly established in Supreme Court decisions, in decisions of lower courts, and in reviews by legal historians that the Second Amendment was intended to protect a collective right of the people to maintain armed state militias, such as the current day National Guard, not a right of individual citizens to own firearms. In particular, the Supreme Court ruled in 1939 in the case of U.S. v. Miller and reiterated in 1980 in Lewis v. United States that, “The Second Amendment guarantees no right to keep and bear a firearm that does not have ‘some reasonable relationship to the preservation or efficiency of a well regulated militia.’”

In 2008, however, a narrow 5-4 majority of the Supreme Court reversed over 200 years of legal precedent by ruling in the case of District of Columbia v. Heller that the Second Amendment did, indeed, confer an individual right to own guns, at least handguns of the type kept in the home “for protection.” The majority opinion in Heller, written by the late Justice Antonin Scalia, is internally contradictory and relies heavily on literature published in law journals over the past two decades by a small group of authors with direct ties to the gun lobby. Prior to the Lewis decision, it was virtually unheard of for any legal history expert to argue that the Second Amendment conferred an individual right to own guns.

Scalia’s majority opinion in the Heller decision effectively deleted the phrase, “A well regulated militia,” from the Second Amendment. In doing so, it opened the floodgates for a torrent of lawsuits challenging all sorts of gun control laws. Although handgun bans in Washington DC and Chicago were overturned, most other gun control laws, including bans on assault weapons, withstood post-Heller challenges.

In questioning Judge Gorsuch during his confirmation hearing, California Senator Dianne Feinstein asked him if he agreed that bans on civilian ownership of weapons such as M-16 rifles that are typically used in military service are consistent with Scalia’s majority opinion in the Heller decision. Gorsuch evaded answering the question directly.

Gorsuch: Senator, Heller makes clear the standard that 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 task as I understand it. There’s lots of ongoing litigation about which weapons qualify under those standards and I can’t prejudge that litigation.

Feinstein: No, I’m just asking you do you agree with this statement, yes or no.

Gorsuch: The statements of, the, uh, Heller decision?

Feinstein: Justice Scalia’s statement.

Gorsuch: Whatever’s in Heller is the law, and I follow the law.

Feinstein: Do you agree?

Gorsuch: Well, it’s not a matter of agreeing or disagreeing, Senator, respectfully, it’s a matter of it being the law, and my job is to apply and enforce the law.

Judge Gorsuch clearly knows, or should know, that the 2008 Heller decision represented a radical reversal of the Court’s prior interpretation of the Second Amendment. He also knows, or should know, that courts have ruled post-Heller that bans on assault weapons do not violate the Second Amendment, but the gun lobby, which enthusiastically supported his nomination by Donald Trump, wants the Supreme Court to rule that civilian ownership of AR-15’s, the civilian version of the M-16 military assault rifle and currently the most popular gun in America, is protected by the Second Amendment. Finally, Gorsuch definitely knows that the Heller decision could be reversed by a change in a single justice on the Supreme Court, and that had Hillary Clinton become President instead of Donald Trump, she almost certainly would have nominated a Supreme Court Justice who would have tipped the balance on the Court and reversed the Heller decision.

In stating, “Whatever’s in Heller is the law, and I follow the law,” Gorsuch is endorsing what the late Supreme Court Chief Justice Warren Burger called “one of the greatest pieces of fraud on the American public” that he had seen in his lifetime. In refusing to answer Senator Feinstein’s question concerning a ban on assault weapons, Gorsuch is also signaling that he would likely vote to expand the category of constitutionally protected firearms beyond handguns protected by Heller to include assault rifles such as the AR-15’s which are currently “in common use.”

It’s ironic that Gorsuch, like the late Antonin Scalia, claims to be an “originalist,” basing his decisions on the original intent of the framers of the constitution. In his introductory comments before his Senate confirmation hearing, he paid tribute to the late Antonin Scalia, stating:

He reminded us that words matter – that the judge’s job is to follow the words that are in the law – not replace them with words that aren’t.

If words matter, then what is it about the phrase, “A well regulated militia,” that Neil Gorsuch doesn’t understand? And where in the Second Amendment does he find the words, “a gun in common use for self defense?”

Recognizing that Gorsuch was not going to give her a straight answer concerning whether he thought bans on assault weapons were consistent with the Heller decision, Senator Feinstein went on to ask him whether he agreed with the Fourth Circuit Court Judge Harvey Wilkinson who wrote in the case of Kolbe v. Hogan that the Second Amendment was ambiguous and that the ambiguity should be resolved by legislators representing the people who were directly affected by gun violence, not by judges who were relatively insulated from it. Again, Gorsuch refused to give a straight answer.

Gorsuch: I begin by saying I hold Judge Wilkinson in high regard. He is a very fine man and a very fine judge.

Feinstein: Can you say yes or no?

Gorsuch: No, I’m, I wish I could, um, but…

Feinstein: I wish you could too.

Gorsuch: You know, the Supreme Court of the United States isn’t final because it’s infallible, as Justice Jackson reminds us. It’s infallible because it’s final. And, uh, Judge Wilkinson had his view, and the Supreme Court has spoken, and, and, Heller is the law of the land, and Judge Wilkinson may disagree with it and I understand that, um, and he may, but he will follow the law no less than any other judge in America. I am confident of that. Um, he’s a very fine judge who takes his oath seriously.

Gorsuch knows that the Supreme Court is neither infallible nor final. It’s not uncommon for the Supreme Court to reverse a previous ruling. According to the Government Accounting Office, the Supreme Court has issued rulings that overturned all or part of previous decisions on 236 occasions from 1810 through 2016. The 2008 Heller decision has been called by some legal scholars one of the worst Supreme Court decisions in U.S. history. Heller may be the law of the land today, but Heller overturned the rulings in Miller in 1939 and Lewis in 1980. If confirmed as a Supreme Court Justice, Gorsuch himself could choose to be the deciding vote in overturning the radical Heller decision and in returning the Second Amendment to its original meaning. It’s clear from his answers to Senator Feinstein’s questions, though, that Gorsuch does not intend to do so.

The issue of the Second Amendment is only one of many on which Judge Neil Gorsuch refused to provide a straight answer to questions from members of the Senate Judiciary Committee during two days of confirmation hearings. His evasive answers on the Second Amendment alone, though, along with his endorsement of a fraudulent misrepresentation of the Second Amendment as guaranteeing an individual right to own guns, are reason enough to deny him a position on the Supreme Court. Please contact your U.S. Senators today and urge them to oppose the appointment of Judge Neil Gorsuch to the U.S. Supreme Court. (Click on this link for your senators' contact information.)

Thanks for your support of Americans Against Gun Violence. If you haven't already done so, please go to the Join/Donate page of this website to become a paid member and to make an additional donation if you're able. Please also visit the Facts and FAQ’s page of the Americans Against Gun Violence website to learn about other actions that you can take right now to help stop the shameful epidemic of gun violence that afflicts our country.

We can't call ourselves a great nation until the day when rates of firearm related deaths and injuries in our country are at or below the rates in other high income democratic countries. In order to achieve this goal, we need to reverse the fraudulent Heller decision and adopt stringent gun control regulations comparable to those that have long been in place in every other high income democratic country of the world. I look forward to working with you to make that day come sooner rather than later.

 

Sincerely,

Bill-sig

Bill Durston, MD
President, Americans Against Gun Violence

Note: Dr. Durston is a retired emergency physician, a combat veteran, and a former expert marksman in the U.S. Marine Corps, decorated for courage under fire during the Vietnam War.