It took a Republican-controlled Senate using the so-called "nuclear option" of eliminating the filibuster to get President Trump nominee Neil Gorsuch confirmed to the Supreme Court. Now that he has been seated as an Associate Justice, how he will vote on various gun rights cases is a question for both gun owners and investors in the industry.
There are a number of gun-related cases that will likely come before the court in the near future, and gun owners hope Gorsuch will rule in a manner similar to the late Antonin Scalia. But because he decided only a few relevant cases during his tenure on the Tenth Circuit Court of Appeals -- and refused to prejudge any that might come before him during his confirmation hearings -- there's not much to say definitively which side he will come down on.
Image source: Getty Images.
So let's see if we can't parse how the justice might rule in upcoming Second Amendment law based on what's he's said in the past.
The Constitution means what it says
Gorsuch is largely seen as a strict constructionist, viewing the Constitution through the lens of what the Framers meant at the time they wrote the document. When asked during his confirmation hearings whether he agreed with a recent Fourth Circuit Court ruling that modern sporting rifles don't enjoy Second Amendment protections, he responded, "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."
He reiterated that when asked whether he agreed the Second Amendment was ambiguous on regulating gun ownership. Gorsuch replied that although some lower court judges may disagree, the seminal case District of Columbia v. Heller written by Scalia "is the law of the land."
An example of a modern sporting rifle under question in the Fourth Circuit ruling. Image source: Getty Images.
So it seems gun rights supporters have reason to be optimistic Gorsuch will support their cause if confirmed, but Heller really only deals with a person's right to keep arms. The bigger question is: Will he also support the right to bear them?
The right to be left alone
A group of gun owners has petitioned the Court to hear the case of Peruta v. County of San Diego that asks whether it's a violation of the Second Amendment for the county to require a person to show "good cause" before issuing a concealed carry permit.
A three-judge Ninth Circuit panel struck down the requirement, but the full 11-judge court decided to hear it en banc and overturned the panel's ruling.
Gun owners may have reason to be concerned. In the Tenth Circuit case U.S. v. Rodriguez, 12-2203, Gorsuch concurred with the majority opinion that New Mexico police acted lawfully when they detained a store clerk who was seen carrying a loaded firearm and seized it, even though it is lawful in New Mexico to carry such weapons as long as the person is licensed. Although it turned out Rodriguez was not licensed and in fact was a felon prohibited from possessing a firearm, a police officer wouldn't have known that detaining him.
Under the 1968 case Terry v. Ohio, the Court held the mere presence of "[c]oncealed weapons create an immediate and severe danger to the public" and gave police the right to stop and frisk a person. By siding with the majority in the Rodriguez case, it would seem Gorsuch believes the millions of law-abiding citizens who lawfully carry concealed weapons are automatically to be considered dangerous and subject to stop-and-frisk.
Image source: Getty Images.
Moreover, in U.S. v. Games-Perez, Gorsuch concurred with finding a felon guilty of possessing a gun, although there was reasonable doubt whether the defendant actually knew he was a felon. While Gorsuch subsequently argued Games-Perez was entitled to an appeal (which was denied by the court) and seemed to express doubts about whether he would rule in a similar fashion again, he acknowledged he concurred in the original case, because it was determined by precedent.
There are a number of constitutional (or permitless) carry cases winding their way through the lower courts as well.
More to come
Other important issues will have ramifications for the gun industry, including California's microstamping law, the state's roster of approved guns, and the sale of silencers.
While Congress is considering the Hearing Protection Act that would reduce restrictions on the sale of suppressors, two Kansas men were convicted of selling and using, respectively, a suppressor despite the state's Second Amendment Protection Act that legalized them. The governor, however, has asked President Trump to pardon them, which may eliminate any appeal to higher courts.
Suppressors are already legal in 42 states but fall under stricter regulations than firearms themselves. Sturm, Ruger began making suppressors last year, joining industry peer Sig Sauer, among other manufacturers.
Still something of an enigma
Justice Gorsuch will likely be favorable to gun rights, but his sometimes contradictory opinions may lead supporters to find that in particular cases, he is not as ardent a defender of the Second Amendment as they imagine. For issues like suppressor regulation and concealed carry reciprocity, Supreme Court decisions will have a direct impact on supporting or limiting growth avenues for the firearms industry.
