The U.S. Supreme Court seat last occupied by Antonin Scalia has sat vacant for more than a full year—more than six times longer than the average length of the previous 15 high-court vacancies.
There is no mystery about the reason for Senate Republicans’ unprecedented obstruction of President Obama’s nominee to fill the seat, Merrick Garland. In a rare moment of candor, Senate Majority Leader Mitch McConnell said, simply, that the Senate wouldn’t confirm Garland because he was opposed by the National Rifle Association.
One year—and one tumultuous election—later, it looks like the gun lobby has gotten their man. The Gun Owners of America offered enthusiastic praise for Donald Trump’s Supreme Court nominee, 10th Circuit Judge Neil Gorsuch. The NRA applauded him as an “outstanding choice.”
If Gorsuch indeed shares the gun lobby’s views on the Constitution and reliably votes in favor of its agenda, Americans should be very concerned.
The next gun case to reach the court will present a choice between two competing views of the Second Amendment. The first has prevailed since the earliest days of the republic: it recognizes that with gun rights come basic responsibilities, and that common-sense gun regulations do not violate anyone’s constitutional rights. Justice Scalia embraced this view in his landmark opinion in District of Columbia v. Heller, in which he wrote that the Second Amendment is “not unlimited,” that it’s “not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatsoever purpose,” and that a broad range of gun safety laws are 100 percent constitutional.
By contrast, the absolutist view of the Second Amendment advanced in gun lobby lawsuits across the country maintains that even modest firearm regulations are an affront to the Constitution. These lawsuits are percolating through the courts, and any one of them could end up before the Supreme Court in the months and years ahead.
They include one case in which the NRA is challenging the requirement that people have a good reason to carry hidden, loaded guns on the streets of our nation’s capital. In another lawsuit, the NRA argues that the Second Amendment protects the right to carry guns, openly and in plain view, on public streets across the country. In case after case, the gun lobby claims American freedom is at stake if guns can’t be carried at all times and just about everywhere, including in elementary schools, public parks and houses of worship.
Gun lobby lawyers argue that requiring criminal background checks on firearm sales, the single most effective means of keeping guns out of dangerous hands, violates the Second Amendment—even though 82 percent of gun owners and 92 percent of Republicans support these effective laws.
And although the Supreme Court has repeatedly said many gun laws don’t infringe on constitutional rights, the gun lobby pushes against even the most limited regulations. After the court upheld the law prohibiting convicted domestic abusers from possessing guns—by a 9-0 vote—Gun Owners of America condemned the decision as “corrupt” and “illegitimate.” None other than Justice Scalia wrote that “laws regulating the storage of firearms to prevent accidents,” are constitutional, but the NRA’s legal team claims that requiring gun owners to lock guns out of children’s reach violates fundamental American values.
If the court embraced the gun lobby’s dangerous view, it would roll back background checks, obliterate even the most basic training requirements for people carrying guns in public and allow almost anyone—no matter their criminal or mental history—to own and carry a gun with no limitations.
And with a closely divided Supreme Court, Judge Gorsuch could cast the deciding vote in cases challenging these fundamental safety laws. While Gorsuch may lack an extensive paper trail on the Second Amendment, the cases Gorsuch has ruled on give cause for concern. As UCLA law professor and Second Amendment expert Adam Winkler observed, in the gun cases that Gorsuch has decided, his opinions “very much fall in line with the NRA’s view.”
In one case, he threw out illegal gun possession charges against a convicted felon, and in another, Gorsuch bent over backwards to decide a case on procedural grounds rather than acknowledge that convicted domestic abusers don’t enjoy the same gun rights as law-abiding citizens—a generally uncontroversial view shared by the vast majority of conservative politicians and voters.
In a third case, Gorsuch repeatedly sided with another convicted felon who argued he shouldn’t be held accountable for illegally possessing a gun based on the far-fetched claim that he didn’t know he was a felon. Fortunately, the majority of Gorsuch’s colleagues on the 10th Circuit—and judges on every other appeals courts to consider the issue—rejected his outlier stance, making it, by definition, outside the mainstream.
There are many issues to consider in confirming the next Justice, but the issue of gun safety alone makes the stakes of this confirmation too high to ignore: the impact of decisions in major future gun cases will be measured in lives.
Given those stakes, leaders in the gun violence prevention movement, including Americans for Responsible Solutions, the gun violence prevention group founded by former Congresswoman Gabby Giffords and retired NASA astronaut Mark Kelly, are withholding support for Gorsuch’s nomination until the Senate ensures his positions on firearms reflect the reasonable and responsible views of the judicial mainstream, not the extreme and dangerous views of the corporate gun lobby.
On Judge Gorsuch, the jury’s still out.
Robyn Thomas is executive director and Adam Skaggs is litigation director of the Law Center to Prevent Gun Violence, the sister organization of Americans for Responsible Solutions.