Of Arms and the Law

Navigation
About Me
Contact Me
Archives
XML Feed
Home


Law Review Articles
Firearm Owner's Protection Act
Armed Citizens, Citizen Armies
2nd Amendment & Historiography
The Lecture Notes of St. George Tucker
Original Popular Understanding of the 14th Amendment
Originalism and its Tools


2nd Amendment Discussions

1982 Senate Judiciary Comm. Report
2004 Dept of Justice Report
US v. Emerson (5th Cir. 2001)

Click here to join the NRA (or renew your membership) online! Special discount: annual membership $25 (reg. $35) for a great magazine and benefits.

Recommended Websites
Ammo.com, deals on ammunition
Scopesfield: rifle scope guide
Ohioans for Concealed Carry
Clean Up ATF (heartburn for headquarters)
Concealed Carry Today
Knives Infinity, blades of all types
Buckeye Firearms Association
NFA Owners' Association
Leatherman Multi-tools And Knives
The Nuge Board
Dave Kopel
Steve Halbrook
Gunblog community
Dave Hardy
Bardwell's NFA Page
2nd Amendment Documentary
Clayton Cramer
Constitutional Classics
Law Reviews
NRA news online
Sporting Outdoors blog
Blogroll
Instapundit
Upland Feathers
Instapunk
Volokh Conspiracy
Alphecca
Gun Rights
Gun Trust Lawyer NFA blog
The Big Bore Chronicles
Good for the Country
Knife Rights.org
Geeks with Guns
Hugh Hewitt
How Appealing
Moorewatch
Moorelies
The Price of Liberty
Search
Email Subscription
Enter your email address:

Delivered by FeedBurner

 

Credits
Powered by Movable Type 6.8.7
Site Design by Sekimori

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

Concurrence [corrected] by Judge Gorsuch, the SCOTUS nominee

Posted by David Hardy · 31 January 2017 08:15 PM

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 ยง 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."

5 Comments | Leave a comment

Fyooz | January 31, 2017 8:31 PM | Reply

Is this from the original ruling or from his dissent to denial of en banc?

http://119coalition.org/wp-content/uploads/2017/01/Judge-Neil-Gorsuch-rev2.pdf

Anonymous replied to comment from Fyooz | January 31, 2017 8:32 PM | Reply

Duh, I just needed to read your title for this post.

Fyooz | January 31, 2017 8:34 PM | Reply

"none of these arguments compels us to perpetuate the injustice of disregarding the plain terms of the law Congress wrote and denying defendants the day in court that law promises them."

FWB | February 1, 2017 8:53 AM | Reply

Plain law except Congress has no constitutional authority to write such laws. Congress is granted police/punishment power in ONLY 6 cases. Since there are no implied powers, review of the granted powers provides unassailable evidence that connected powers are NOT granted by implication, and no inherent powers, 10th and the fact that standard inherent powers such as the power to tax are explicitly granted, Congress can only usurp power unconstitutionally to make laws on anything except punishment of counterfeiting, punishment of copyright/patent violation, punishment for piracies on the high seas, punishment for felonies on the high seas, punishment for offenses against the law of nations, and treason.

We are not a nation of laws if our founding and central law is continually undermined, ignored, and manipulated by the judicial branch. After reading hundreds of federal court decisions, my take is they pull their decisions out their nether regions. It is their predilections that direct their decision and not the law.

old guy | February 2, 2017 9:31 AM | Reply

If he gets approved ( hope, hope) I can see some very interesting opinions been presented. I enjoy reading Scalia's for that reason :)

Leave a comment