Gorsuch Opinion in Deportation Case Raises Doubts for Gun Owners

Gorsuch takes oath of office. Asking nominees what that means is off-limits to those considering their qualifications? (White House Photo by Shealah Craighead)

USA – -(Ammoland.com)- “President Donald Trump is concerned that his Supreme Court darling Justice Neil Gorsuch — whose appointment is regularly cited by the White House as a top accomplishment under Trump — is too liberal,” Talking Points Memo reports. “Trump was frustrated by Gorsuch’s recent vote against the administration on an immigration case, which reportedly pushed him to question whether Gorsuch was going to be a reliable conservative voter on the high court.”

The case, summarized by SCOTUSblog, was Sessions v. Dimaya:

“A lawful immigrant from the Philippines, James Garcia Dimaya has lived in the United States since 1992. He has two residential burglary convictions, neither of which involved violence. Based on the convictions, the immigration court and the Board of Immigration Appeals ordered Dimaya removed from the United States. The U.S. Court of Appeals for the 9th Circuit overturned the BIA’s order, finding that Section 16(b) was unconstitutionally vague.”

So he can’t be deported for that?

Gorsuch joined “liberal justices” Elena Kagan, Sonia Sotomayor, Ruth Bader Ginsburg and Stephen Breyer to side with the notoriously “progressive” 9th Circuit’s rationale:

“Rather than assessing whether the particular facts of someone’s conduct pose the substantial risk required under the statute, courts consider the overall nature of the offense, and ask ‘whether “the ordinary case” of an offense poses the requisite risk.’”

Obviously none of the august “justices” have ever encountered a criminal in their homes. Just the presence is an act of violence if one considers the natural jolt to the heart that occurs, and burglars can hardly be certain that the dwellings they break into are unoccupied. That means they do so anyway with full knowledge that they could encounter someone with the odds of further violence being the result.

It also raises the question of just what the hell is wrong with the law where this country can take in foreign nationals, who prove to be scumbag parasites and predators, and not use that alone as justification to send them packing.

That Gorsuch is weak-kneed on “immigration” abuses raises serious questions of direct concern to gun owners (the fraudulent “single issue” excuse-making notwithstanding).

Here’s the challenge for anyone who wants to tell us otherwise:

Audit all credible polls against real-world experience in places like California and then produce credible data – not opinion, not anecdotes, not isolated examples, but something that can be independently validated – demonstrating that “amnesty” and a “pathway to citizenship” for MILLIONS of foreign nationals in this country — both illegally and legally with CURRENT culturally suicidal policies — WILL NOT overwhelmingly favor Democrats and anti-gunners. Show your sources and methodologies for determining this WILL NOT result in supermajorities in state and federal legislatures that will then be able to pass all kinds of anti-gun edicts. Show how this WILL NOT result in nominations and confirmations of judges to the Supreme and federal courts who will uphold those edicts and reverse gains made to date.

How much more proof do we need?

This is not (contrary to what those behind the cultural terraforming to advance a political agenda would have you believe) “xenophobic” or worse. They do that to make people afraid to be called “racists” if they even bring it up. What they won't tell you is, immigration law protecting the national identity and interests is basically the same policy as Mexico’s.

And Gorsuch hasn’t proven to be that hot on right to keep and bear arms fidelity either, in spite of all the gushing from the gun groups about his ambiguously qualified opinion that “‘the Second Amendment protects an individual’s right to own firearms and may not be infringed lightly.”

Compare to “shall not be infringed.”

It’s important to note that:

“During his confirmation hearings, Justice Gorsuch assured Sen. Dianne Feinstein, D-California, when asked specifically about the banning of M-16 rifles and the like, that he would follow the law in Heller.”

In many ways, through its recognition of an individual right, Heller was the landmark case we’re told it was. That said, “originalist” Antonin Scalia left the door open for all kinds of infringements with some assertions the antis are taking full advantage of.

“Like most rights, the Second Amendment right is not unlimited,” Scalia asserted. Not surprisingly, he sided with stare decisis über alles over “shall not be infringed” as the basis for upholding “concealed weapons prohibitions” and “legitimizing” gun-free zones. But the most damaging point that has been seized upon and has paved the way for the banning of militia-suitable arms is this:

“Miller’s holding that the sorts of weapons protected are those ‘in common use at the time’ finds support in the historical tradition of prohibiting the carrying of dangerous and unusual weapons.”

“Ordinary military equipment” is not what Scalia focused on, but rather on “the sort of lawful weapons that [militia members] possessed at home.” He used that to imply banning weapons such as “M-16 rifles and the like” would not be an infringement. Why, otherwise, he noted, “it would mean that the National Firearms Act’s restrictions on machineguns … might be unconstitutional, machineguns being useful in warfare in 1939.”

Yeah. Kind’a like what Tench Coxe said.

What Scalia and the Heller majority ignored is that the militia, at the time the Second Amendment was ratified, kept the same types of weapons at home as they were likely to encounter when called forth – otherwise, they would be marching off to their slaughter. That’s hardly something that would be “necessary to the security of a free State.”

By definition, all weapons can be made dangerous through their deployment, and the gun-grabbers are quick to spook the herd with “scary evil black rifles” and “high-capacity magazines” that are “weapons of war” and have the sole purpose of “killing as many people as quickly as possible.” But here’s the thing: If Miller recognized the people — who still comprise the “unorganized militia” as recognized by U.S. Code — have a right to bear “ordinary military equipment,” that presupposes “common use” is not a benchmark for commercial popularity or sporting use. And that would mean that “dangerous and unusual” apply to unconventional restricted items that are not part of “ordinary military equipment” or of any “gun control” edicts that have been enacted or are being proposed.

President Trump having second thoughts about Gorsuch calls into question who he’s listening to and how he makes his nomination decisions. He disregarded a key  campaign promise with a recent nomination that will add yet another “anti-gun” judge to the 9th Circuit.

Mark Jeremy Bennett, a former Hawaii attorney general “had backed a limited interpretation of Second Amendment rights that was overturned by the Supreme Court.” Juxtapose that against the 9th Circuit recently losing the one sane voice it had on the Second Amendment with the #MeToo-pressured resignation of Judge Alex Kozinski.

While typically in judicial confirmation hearings, nominees have been able to rely on an “out” giving them a pass on answering specific questions, think of one job you’ve ever applied for where you’d have gotten it if you decided to play coy with the hiring managers.  While it may be “inappropriate” for a judge to weigh in on a specific case before confirmation, there’s no reason why general principles of understanding should be off-limits. Such hearings are supposed to be, among other things, high-level employment interviews, not pre-coronation ceremonies.

As such, here are questions gun owner rights advocates should expect nominees for the federal bench shouldn't have any trouble answering:

  • What did the Founders mean by “A well regulated militia”?
  • What did the Founder mean by “being necessary to the security of a free State”?
  • What did the Founders mean by “the right of the people to keep and bear arms”?
  • What did the Founders mean by “shall not be infringed”?
  • How can past Supreme Court opinion specifying protected arms as those being “in common use at the time” not be applicable to the types of firearms needed for militia service?

I’d also add a tangentially-related question, one not directly part of the “single issue,” but one that nonetheless is being used to undermine it:

What Constitutional basis is there to “secure the blessings of Liberty to ourselves and our Posterity” by exercising protective measures over who may enter the country, who may stay and who may become a citizen?

If those questions can’t be asked, what’s the point in pretending we’re living under anything resembling the rule of law designed by the Founders?

Also see:


About David Codrea:David Codrea

David Codrea is the winner of multiple journalist awards for investigating / defending the RKBA and a long-time gun owner rights advocate who defiantly challenges the folly of citizen disarmament.

In addition to being a field editor/columnist at GUNS Magazine and associate editor for Oath Keepers, he blogs at “The War on Guns: Notes from the Resistance,” and posts on Twitter: @dcodrea and Facebook.

  • 41 thoughts on “Gorsuch Opinion in Deportation Case Raises Doubts for Gun Owners

    1. It might well turn out that the late Justice Scalia,like the gentleman who wrote The Second Amendment didn’t know when to shut up. As for Justice Gorsuch on firearms,we shall have to wait a bit.One does hope that President Trump, with this nomination, didn’t hand a victory to the anti gunners.

    2. what people DON’T understand is this.
      those Supreme Court black robed petty tyrants are NOT THE LAST SAY on what is CONSTITUTIONAL OR NOT.
      WE THE PEOPLE AND CONSTITUTION ARE.

    3. Gorsuch is being given a bum rap on this issue.

      First, I think we can all agree that it is not lily-pure good guys that often run afoul of the legal system, and that means that when the legal system is screwed up it is usually a bad guy that is in the crosshairs. So when the screw-up is corrected by a concerned judge, the bad guy is usually the beneficiary. The prime example of that is Mr. Miranda, who has been immortalized by a SCOTUS rulilng in his favor.

      What Gorsuch ruled on here was the tendency of the lawmakers to write a nebulous law without specific meaning, and allowing the courts to decide just what the law “means.” That nonsense has been going on decades, and Gorsuch rightly ruled against it in this case. There cannot be a “super stretchable law” that can be used to provide almost anything a prosecutor and a willing judge can use.

      This really is a ruling directly in favor of gun owners. It protects us from that ambiguous wordings that populate so much of the law being written today about guns and firearms.

      I don’t like George Will and consider him a squish on most subjects but he managed to get this one correct if you google his article about this issue.

    4. Gorsuch identified a law that was Constitutionally vague, and some here disagree…too bad. Gorsuch deals with the law and the definition of the law as written….Instead of bitching about the decision of a Constitutional scholar, why don’t you just contact your representative and urge them to tighten up that law so that this doesn’t happen again?

    5. Look folks, this is what’s going to happen. Lawful immigrant proves himself unworthy. Judge says you can stay it was only burglary. Next time doofus does it, he is wounded or killed. NOW the perpetuator SUES the VICTIM because he’s not supposed to have anything adverse happen to him.

      Vote ’em all OUT>

    6. There was s big gap when supreme court justices (not judges) where appointed with no term limit. They should at least have to face a retention vote (of the voters) every four years.

    7. Scalia definitely did not think that Heller (or Miller, for that matter) decided the question of so-called assault weapons. When specifically asked about it in an interview a few years ago he said “It will have to be decided”.

    8. I think you of the right worry even more then those on the left. Complain about The Complainers. Make the base think the world is coming to an end. Not for me, Free You Mind, Be Party Blind. The 2nd, and all the others, and even US The USA will be just fine, just don’t walk lock-step with any Party.

      1. Dave Brown, except Leftists have stated they want to revoke the Second and do make firearm ownership for the law-abiding more onerous and expensive, which creates classes of citizens that can exercise their rights; those with the connections, money and those that or were LEOs. That goes directly against our founding principle of egalitarianism.

      2. This is about the 4th of 5th time I have seen you complaining about those who complain about the complainers. You never seem to notice that irony, do you? Are you too busy complaining?

      3. @Dave the Slave, Be a goat, squander your vote. No need to think, have Coolaid to drink. Waste your time, write a juvenile, meaningless, unconvincing propaganda rhyme.

        1. @Wild Bill very good! Didn’t know you were a poet. Did you notice that Dave the Goat doesn’t even answer when someone challenges his lack of common sense and reasoning. It must always be sunny in his own personal world. Next mass shooter, possible?

    9. I agree with Gorsuch’s decision. Once a person has become a full citizen, he deserves the same treatment as a naturally born citizen. In this case, he is not an illegal immigrant (I would have had a different position if he was). The decision was supported by the statement that his crimes, “neither of which involved violence.” But even if they were, he was accepted into this country and is now our fellow citizen and accountable under the law. He might go to jail. He might go to prison, but deportation is no longer a reasonable alternative. This has obvious implications that say that if the original decision was upheld, we will not protect ANYONE who has had less than a generation of citizenry and commits a crime on any level. He is now an American and unlike those who technically are not, deserves equal rights under our law. With the millions of LEGAL immigrants, who have properly gone through the system, statistically you will get a few bad apples. Let me add that if the crimes were heinous enough or treasonous, revoking that citizenship can be done. Then we can kick him out, but won’t he just return? I would rather lock him up and know the rest of us are safe, but that is a different argument.

        1. The government used the wrong charge. Since Dimaya’s convictions were two years apart, the government could (should) have charged him with having been convicted of “two or more crimes involving moral turpitude [crimes involving theft, fraud, or violence] not arising from the same scheme of criminal misconduct,” which would have rendered him deportable. (My guess is that they went with the “aggravated felony” section to deny him bond.) If the government had applied the proper charge, this guy would have been deported long ago with no muss and no fuss. Now the government and we are paying for this screwup.

    10. So this illegal criminal was allowed to stay here. That is a crock because we have laws governing who can be here and who can’t and the law says an illegal is illegal. Court of appeals making their own laws, now. We are in for it.

      1. All the government had to do was apply the proper section of the law, the one that states that conviction for “two or more crimes involving moral turpitude [i.e., crimes involving theft, fraud, or violence] not arising from the same scheme of criminal misconduct” renders an alien deportable, and Dimaya would have been gone a long time ago with no muss and no fuss. Instead, the government relied on a nebulous section of the law (my guess is to deny him bond), and now it and we are paying the price.

    11. “If Miller recognized the people — who still comprise the “unorganized militia” as recognized by U.S. Code . . .”
      To quote your link:
      “The militia of the United States consists of all able-bodied males at least 17 years of age and, except as provided in section 313 of title 32, under 45 years of age who are, or who have made a declaration of intention to become, citizens of the United States and of female citizens of the United States who are members of the National Guard.”

      If this is the basis of your 2nd Amendment argument, then according to 10 U.S. Code § 246 – Militia: composition and classes (a) citizens lose their right to own firearms when they turn 45, and females can’t own firearms unless they are members of the National Guard.

      1. It’s a side note in a series of arguments to help establish a legal basis for regular Americans’ claim to keep and bear “ordinary military equipment.” it’s already established law that the right is not dependent on the prefatory clause.

        And for the record, I have long advocated challenging that discriminatory language in USC.

        1. @ David K. White:

          As a side-note to David Codrea’s side-note, I would push back against the assertion in your final sentence/paragraph by stating that an equally-fair reading of “composition and classes” would simply be that the people falling within those parameters might have a ‘stronger helping’ of constitutional protections than people falling outside of them.

          Just for example, and not necessarily something that I would advocate for… a practical application of that reading might be:
          1.) Laws which deprive persons who are members of the ‘organized militia’ should be subjected to strict scrutiny;
          2.) Laws which deprive persons who are members of the ‘unorganized militia’ should be subjected to intermediate scrutiny;
          3.) Laws which deprive persons who are *not* members of the militia at all might only be subjected to rational basis scrutiny.

          Finally, I have always agreed with David Codrea’s logic behind challenging that discriminatory language. I think that is the best path forward for any ‘militia’ arguments.

    12. The Deep State has gotten to the Judge…Plain and simple! Our Nation is screwed..!!! The 2nd Amendment is as clear as day, “Shall not be INFRINGED”..!!! It does not take a rocket scientist to understand these words! Anyone that defy’s the 2nd Amendment is clearly on the side of the Deep State and those Commie/Nazi/NWO Monsters that have only one goal in mind…DESTROY THE USA..!!! We have a RED DAWN Army massing just south of our border, we have millions of military trained muslins in our Counntry thanks to Obama/Clintons/DemoRats, the FBI has allowed over 80 Islamic military training camps to exist all around our Country, we have Russian Troops in the Mountains of TN and KY, we have Russian Troops in northern CO, we have Chines Troops ships (full of Chines Troops I would bet) in a deep water port in San Diego and all these Solar Farms out west are run and control by a Chines Company that is really owned and operated by the Chine Military and each of the Solar Farms sit right next one of our Air Force bases! When the Red Dawn attacks start our Military will need Air Support to stop the invading Troops, so these Chines Troops will hit and take out our Air Force bases..!!! This is why they want our GUNS as well, period! Is this not enough to convince “We the People” that by NO means will “We the People” allow our Guns to be taken..!!! God help us, PLEASE!

    13. Militia = civilian population as a whole.
      Well regulated = well supplied with the means to do battle.
      Everyone needs to stop interpreting the language as if written today…

    14. I see the tterm ‘sporting use’ mentioned. Oddly enough that is mentioned in the NAZI Weapons Act of 1938 as well as the GCA of 1968. That’s because the latter is a direct Clone of the former. Thomas J. Dodd D-CN rots in Hell for that teasonous act. Read the history.

      1. @HB Spot on.
        Only one question. What do these clowns define as “sporting use”. After the military has discontinued the use of that weapon? 50 years, or 100 years? Will the M1 Garand be considered a sporting use weapon in somewhere around 2075? But the M16 or BAR will never be considered because they are full auto?
        Adolph would be so proud of dodd and his successors in and out of CT.

        1. Un until perhaps about 1990, the venerable 1903 Springfield chambered in .20/06 (7.62 x 55) had been used to take more game in North America than any other single model of rifle. WHY? They were surplussed to the public nce the Garand bevame the MBR for our military (which rifle was NOT legal for hunting because there was no practical way to limit the magazine capacity to five rounds, as required in every state I know of). When I was a kid, anyone who oculd even ride a bicycle could get off to a war surplus store, hardware store, Western Auto, and buy a rack grade ’03 SPringfield for between $25 and 30. A really sweet one might ask fifty in a high class joint. MilSurp ammo was cheap.. by the can, almost as cheap as .22 WRF. Hunitng loads were everywhere, for when you take the field for your game.

          So there was one military rifle that rapicdly came into common use for everything, immediately post the German War, ended 1917 or so. As to the later M1 Garand, I know at least a dozen people who own them and use them. And they are decidedly “not for hunting” )as noted above).

          So why all the fuss, when the M4 and variants are not legal for ANY normal person to own or use, has never been allowed to come into “common use” by su=imple stroke of the pen of Congress in outlawing them? Yet a variant that has cosmetic similarities IS in common use (some 14 Mn in public hands?) and is nowhere near as suitable for military use (not ful auto or select fire) get villainised into oblivion, or will be if we slumber for much longer) yet IS usable for the taking of smaller game, and for varmint control. It has military, common, sporting, agricultural use, and yet they wish to rid society of the tool whilst utterly ignoring the far more lethal and capable M1 Garand, which no longer has military use, has NO hunting use, only common, sporting, agricutlrual use). It has FAR more power, and far longer range capability.

          1. http://www.fgc.ca.gov/regulations/current/mammalregs.aspx#353

            As you can see for yourself at the above link, there is no magazine capacity limit for rifles used in the taking of game in California, although as everyone who reads Ammoland is well aware, there is a blanket ten round capacity limit for ALL firearms. I’ve known people who hunt with their M1’s. Perhaps it is different where you live, but blanket statements will usually get you in trouble.

            As for the M4, I fail to see your point. 90% of the legislation Congress has passed regarding firearms, starting with the NFA, is Constitutionally illegal, and is enforceable only because the Federal judiciary are unwilling to correct past errors. In a way, the judiciary’s failure to rule correctly on this subject is a small (very small) blessing. Were the Second Amendment and Article 1 to be interpreted strictly, you would be required to own and maintain an M4, while any sporting arm lacking military utility could be banned and confiscated at any time.

    15. What garbage. Never heard of “talking points memo” before and can only say that it is a garbage dump. Take a few seconds of your valuable time and go to the site. Just reading the headlines will tell you all you need about their lefty slant. As a fan of David Codrea, I find it hard to believe this article came from him.
      If I wanted this garbage, I’d go directly to CNN and get it where it enters the horse, not where it leaves the horse.

      1. See reply to Gerry below. Refute the information this article takes from TPM.. What do I specifically cite from TPM that is either untrue of inaccurate? Your dismissal resorts to a straw man argument and the logical fallacy of attacking the source instead of the information.

    16. Talking Points Memo is a far left site. Enough said.
      Gorsuch’s opinion in Sessions v. Dimaya, that the law was too vague, should be celebrated. The last thing we should want is any law that can be interpreted in any way the government feels like at the time. It gives them a precedent to come up with all sorts of “catch-all” shortcuts to violate our rights. We should be glad Justice Gorsuch demands specific language instead.
      You also missed the boat with the quote, “‘the Second Amendment protects an individual’s right to own firearms and may not be infringed lightly.” The case was about a felon in possession of a gun, not a lawful possession by a citizen. A more important Gorsuch quote from the same case, “There can be fewer graver injustices in a society governed by the rule of law than imprisoning a man without requiring proof of his guilt under the written laws of the land” is a better indication of his mindset regarding the rights of the individual.
      Justice Gorsuch is a strict interpreter of the law, not someone who will permit the opinion-of-the-moment to prevail. As such, he will protect the Second Amendment, not take it apart like the liberal side of the court.

      1. “Talking Points Memo is a far left site. Enough said.”

        No, that’s not enough said. Refute the information this article takes from that one. What do I specifically cite from TPM that is either untrue of inaccurate? Your opening dismissal resorts to a straw man argument and the logical fallacy of attacking the source instead of the information. Why?

        In Dimaya, the opinions of Thomas, Alito, Roberts and even Kennedy are hardly revisionist or activist. As Mark Levin explains, “[I]mmigration law has never been akin to criminal law. Immigration law, the Supreme Court has given the executive branch maximum flexibility. We’re not talking about United States citizens and criminal law.”
        https://www.cnsnews.com/blog/michael-morris/levin-gorsuch-absolutely-wrong-scotus-immigration-decision

        In other words, Gorsuch and the majority are saying it’s unconstitutional “to enforce our own immigration laws unless we spell out every possible crime in the statute so that foreign nationals know the entire laundry list of crimes for which they can be deported.’”

        See analysis by Daniel Horowitz on Conservative Review: https://www.conservativereview.com/articles/gorsuch-dead-wrong-immigration/

        As for missing any boats, not hardly. The case you cite was UNITED STATES v. GAMES PEREZ, and the “lightly” quote is followed by references to two cases, Heller being the one I focused on in this column. See:
        https://caselaw.findlaw.com/us-10th-circuit/1592134.html

        As such, while assuring us that Gorsuch “will protect the Second Amendment,” you have totally ignored the documentation presented in the column above that shows how he defers to the majority opinion in Heller that left the door open to uphold bans on “ordinary military equipment.” That goes to the core of the right to keep and bear arms.

      2. I am in agreement with Gerry and was prepared to make the same case that he makes here.

        Gorsuch is a is both an originalist and a textualist on the Constitution, as was Scalia. Gorsuch’s concurring opinion on this case was far different in concept and philosophy from that put forth by the four liberal members of the Court. The issue was the clarity and specificity of the law. Vague laws that allow for interpretation from case to case by either a regulatory agency or the court system are the enemy of the rule of law in general, and of the Second Amendment in particular.

    17. I view as a good thing. As applying his standard to federal gun law results in pats being struck down.
      18 U.S. Code § 924 (B) (ii) if the person sold, delivered, or otherwise transferred a handgun or ammunition to a juvenile knowing or having reasonable cause to know that the juvenile intended to carry or otherwise possess or discharge or otherwise use the handgun or ammunition in the commission of a crime of violence, shall be fined under this title, imprisoned not more than 10 years, or both.

      Crime of violence is unconstitutionally vague. The above statute is limited.

    18. “If those questions can’t be asked, what’s the point in pretending we’re living under anything resembling the rule of law designed by the Founders?”

      There hasn’t been any point for some time, all the way back to 1914, in my opinion. The only question now is, has the time come to give up on the ballot box? It’s a terrifying question, but I fear we will soon have our answer.

      1. We are on a collision course with the necessity of replacing the ballot box with the ammo box…if the powers that be …fail to understand that our right to keep and bear arms is not to be infringed at their discretion. You do not wait until the ship submerges … to plug the leaks.

    19. Any Law Should be Written so as
      it can be read and understood plainly
      and simply . If you have to Get other
      text to understand the text your reading,
      it’s too entangled to understand or enforce
      fairly and equally .

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