The Judiciary

Anti-gunners are savaging Gorsuch for vindicating an innocent man

Gun control groups contend that Judge Neil Gorsuch favors armed felons over public safety. They point to a case Judge Gorsuch decided in 2014, U.S. v. Reese.

In fact, the Reese case exemplifies Gorsuch’s careful and fair jurisprudence.

{mosads}In 1992, James Reese pleaded “no contest” to a tampering with evidence charge in New Mexico. The state trial court entered a deferred judgment, and after Reese successfully completed an eighteen-month probationary period without incident, the charge was dismissed. But under New Mexico law, even if a judgment is deferred and the charge is ultimately dismissed, the underlying conviction stands. So Reese became a convicted felon under state law.


Reese subsequently served honorably in the Navy. Deployed to the Persian Gulf for Operation Iraqi Freedom, he was a small arms instructor, teaching Navy personnel how to use firearms to defend themselves. Later, in 2009, federal agents raided Reese’s home and seized many firearms. He then pleaded guilty to being a felon in possession of a firearm, reserving the right to appeal the district court’s rejection of his motion to dismiss the charge. The appeal came to Judge Gorsuch in the 10th Circuit.

The issue confronting Gorsuch and the rest of the three-judge panel was whether Reese had his “civil rights restored.” If so, he could lawfully possess firearms. According to federal gun law precedents, a state has restored a convicted felon’s right to arms only if the state has restored all of the following: the right to vote, the right to serve on a jury, right to arms, and the right to public office.

In other words, if a state says that a felon may possess firearms, that isn’t good enough under federal law. Federal law only recognizes an arms right restoration if all civil rights are fully restored.

The prosecutor and defense agreed Reese could lawfully vote, serve on a jury, and possess firearms under state law. The only question was whether Reese could hold public office in New Mexico.

Writing for the court, Judge Gorsuch realized that New Mexico’s constitution seemed to restore Reese’s right to hold public office, while a state statute seemed to expressly bar Reese from holding public office. Gorsuch deferred to the New Mexico Supreme Court: It is “a close question with persuasive arguments on both sides. In these circumstances, our respect for our cooperative federal system leads us to conclude that the New Mexico Supreme Court, not this court, should have the opportunity to decide it.”

Judge Gorsuch certified the following question to the New Mexico Supreme Court, encouraging the court to reformulate the question however it found helpful: “If an otherwise-qualified person has completed a deferred sentence for a felony offense, is that person barred from holding public office without a pardon or certificate from the governor, as required by N.M. Stat. Ann. § 31–13–1(E), or is that person’s right to hold office automatically restored by Article VII, §§ 1, 2 of the New Mexico Constitution and N.M. Stat. Ann. § 31–13–1(A)(1)?”

The New Mexico Supreme Court accepted the certified question from the Tenth Circuit. The New Mexico Court explained that the “New Mexico Legislature established the deferred sentence as a means of judicial clemency,” and Reese had satisfied the conditions of the deferred judgment. Accordingly, “Reese’s right to hold public office has been restored.”

Gorsuch, writing again for the court, reversed Reese’s conviction and instructed the district court to dismiss the charge against him. At this point, even “the government acknowledge[d] that Mr. Reese’s federal firearms conviction [was] unsustainable.”

Gorsuch asked New Mexico’s opinion out of “respect to the federal character of our judicial system, recognizing that the judicial policy of a state should be decided when possible” by state courts. Based on the New Mexico Court’s decision, even the federal prosecutors agreed that the charges against Reese must be dismissed.

If the anti-gun lobbies were correct—if Gorsuch had a bias in favor of felons—then he would have decided the issue himself instead of asking New Mexico. What Gorsuch actually did was frame the question to New Mexico in a neutral manner, with no bias one way or the other.

Some gun control groups go far beyond “common sense” gun laws. Gorsuch freed a man whom federal prosecutors and the New Mexico Supreme Court agreed had committed no crime—yet the gun control groups complain about the decision.

Rather than casting doubt on Judge Gorsuch, the complaints about Reese demonstrate the lawless attitude of some elements of the gun control lobbies. 

David Kopel is Research Director for Independence Institute, a free market tank in Denver, Colorado. Joseph Greenlee is an attorney in Steamboat Springs, Colorado.

The views expressed by contributors are their own and are not the views of The Hill.

Tags David Kopel Joseph Greenlee Neil Gorsuch Second Amendment Supreme Court
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