This last week offered conservatives and libertarians a delightful spectacle in Judge Neil Gorsuch's testimony during Senate Judiciary Committee confirmation hearings on his nomination to replace the late Justice Antonin Scalia on the U.S. Supreme Court.
Gorsuch performed so brilliantly, and his antagonist Judiciary Committee liberals performed so ineptly, that his confirmation now appears all but certain.
In that vein, this week offered additional positive news in the form of a new Rasmussen Reports survey showing that voters believe that any opposition to Gorsuch's nomination derives from pure partisanship rather than any honest difference in judicial philosophy. Respondents also believe that Gorsuch deserves confirmation more than they did any of Obama's nominees, and are confident that he will indeed be confirmed.
Accordingly, with Gorsuch's confirmation a near certainty, we could relax and enjoy the intellectual, temperamental and jurisprudential clinic that Gorsuch put on.
One particularly encouraging point arrived when Gorsuch suggested that he may maintain an even more expansive view of the Second Amendment individual right to keep and bear arms than Scalia, who authored the majority opinion in the seminal D.C. v. Heller decision. It occurred during the second day of testimony, when liberal Senator Diane Feinstein attempted to corner him with the following question:
In D.C. v. Heller, the majority opinion written by Justice Scalia recognized that, and I'm quoting, 'Of course the Second Amendment was not unlimited,' end quote. Justice Scalia wrote, 'For example, laws restricting access to guns by the mentally ill or laws forbidding gun possession in schools were consistent with the limited nature of the Second Amendment.' Justice Scalia also wrote that, quote, 'Weapons that are most useful in military service, M-16 rifles and the like, may be banned without infringing on the Second Amendment.' Do you agree with that statement that under the Second Amendment weapons that are most useful in military service, M-16 rifles and the like, may be banned?
Senator Feinstein was obviously going out of her way to cherry-pick words from Scalia's opinion that were unfortunate at the time and unnecessary to the Heller holding itself. But Gorsuch stood his ground:
Senator, Heller makes clear the standard that we judges are supposed to apply. The question is whether it is a gun in common use for self-defense. And that may be subject to reasonable regulation. That's the test as I understand it. There is lots of ongoing litigation about which weapons qualify under those standards, and I can't prejudge that litigation.
Senator Feinstein persisted, attempting to corner Gorsuch one more time using the even more unfortunate and unnecessary words of otherwise conservative Judge Harvey Wilkinson of the Fourth Circuit Court of Appeals:
All right. Fair enough. Let me give you another one. The Fourth Circuit, Judge Harvey Wilkinson authored a separate concurrence in the Fourth Circuit case Kobe v. Hogan. Here is what he said. 'No one really knows what the right answer is with respect to regulation of firearms. I am unable to draw from the profound ambiguities of the Second Amendment an invitation to the courts ... arrogate to themselves decisions that have been historically assigned to other more democratic actors. Disenfranchising the American people on this life-and-death subject would be the gravest and most serious of steps. It is their community, not ours. It is their safety, not ours. It is their lives, not ours.' Do you agree with Judge Wilkinson that the Second Amendment is ambiguous? Should the ambiguity be decided by the Court or legislatures?
But once again Gorsuch, a man noted for his cordial demeanor, stood his ground. In fact, he replied in a manner implicitly critical of Judge Wilkinson in rejecting his willingness to defer to legislative efforts to narrow Second Amendment rights in the wake of Heller:
But the Supreme Court of the United States isn't final because it is infallible, as Justice Jackson reminds us. It is infallible because it is final. And Judge Wilkinson had his view, and the Supreme Court has spoken. And Heller is the law of the land and Justice - Judge - Wilkinson may disagree with it and I understand that. And he may. But he will follow the law no less than any other judge in America. I am confident of that. He's a very fine judge who takes his oath seriously.
That exchange offered an encouraging sign to conservatives, libertarians and anyone who values the individual right to keep and bear arms. By notably refusing to accept Justice Scalia's words wholesale, he signaled that if ruling on a future Second Amendment case, he might consider them dicta and not central to Heller's precedent.
Gorsuch has justifiably been celebrated as someone as close to the "perfect nominee" as could be imagined to conservatives and libertarians. The views on Second Amendment rights that he expressed only strengthened that optimism.