« Thoughts on heroism | Main | House passes resolution to undo reporting of Social Security recipients »

Concurrence [corrected] by Judge Gorsuch, the SCOTUS nominee

US v. Games-Perez, 667 F.3d 1136 (10th Cir. 2012). Statutory construction: does the provision barring felons-in-possession require proof of knowledge that the defendant knew he was a felon? Majority says no, Gorsuch sez yes. In so arguing, he writes:

"I suppose we might consider trying to rescue Capps [prior case law saying the prosecution doesn't have to prove such knowledge] by resorting to the absurd results doctrine, asking whether some implausible result might follow from (and thus perhaps allow us to overcome) the statute's clear textual direction....

But it's hard to see how that might be the case here. Following the statutory text would simply require the government to prove that the defendant knew of his prior felony conviction. And there's nothing particularly strange about that. 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. Staples v. United States, 511 U.S. 600, 610, 114 S. Ct. 1793, 128 L. Ed. 2d 608 (1994); District of Columbia v. Heller, 554 U.S. 570, 128 S. Ct. 2783, 171 L. Ed. 2d 637 (2008). At the same time, of course, the Court has expressly indicated that laws dispossessing felons are consistent with the Constitution. Heller, 554 U.S. at 626, 128 S. Ct. 2783; but see United States v. McCane, 573 F.3d 1037, 1048-49 (10th Cir. 2009) (Tymkovich, J., concurring) (questioning the Court's analysis on this score). And given all this, it is hardly crazy to think that in a § 922(g)(1) prosecution Congress might require the government to prove that the defendant had knowledge of the only fact (his felony status) separating criminal behavior from not just permissible, but constitutionally protected, conduct."