President Barack Obama nominated Merrick Garland to replace Associate Justice Antonin Scalia, and Garland has been under an extreme amount of scrutiny both by conservative and liberal groups alike. However, one has to ask, what are the facts? Is he a threat to the Second Amendment or not? To answer this question for Law Shield members, two independent program attorneys from the law firm of Walker & Byington, Michele Byington and Gordon Cooper, sat down to have a conversation about this potential Supreme Court judge:
Gordon: Michele, there’s a lot of news buzz about Garland’s nomination, and how he is a threat to gun rights. The spin and damage control through news outlets make it seem like he’s either going to personally rip up the Second Amendment, or he is as non-threatening as a bunny rabbit. The only problem is, when I try to find cases where he has made a decision either for or against the Second Amendment, I come up empty. What’s the deal with this guy?
Michele: I don’t know if I would say he is bunny-rabbit level just yet, but he is definitely inactive when it comes to judges. There’s just not a whole lot out there. With that said, there are a few cases where his involvement has impacted the Second Amendment. Parker v. D.C. (which would later become the landmark case Heller v. D.C., which repealed a major anti-gun law in D.C. and continues to support the Second Amendment), and NRA v. Reno seem to be the most important gun or self-defense related involvement Garland has had.
Gordon: In the Parker case, I see he voted for a rehearing. Everyone seems to think this alone makes him a massive anti-gun activist, but I don’t think that’s a correct interpretation of a vote for rehearing.
Michele: That’s right. In the Appellate court system, there are a huge amount of cases to wade through; so usually, the ten-judge panel will break down into a group of three to hear certain cases. Every so often, however, a case is either so controversial or so important that it requires all ten judges; this is a vote for a rehearing.
Gordon: So, essentially, he only voted that all ten judges should hear Parker v. D.C., regarding the D.C. ban on handguns. For all we know, he could have suggested that because he hated guns, or because he thought the three-judge panel didn’t love guns enough and wanted us all to have rocket launchers.
Michele: Exactly. For better or worse, judges do not have to write opinions as to why they voted on a rehearing; so nobody really knows what is going on in somebody’s mind when they vote for a rehearing. Anyone claiming otherwise either has an agenda or is trying to increase their reader base! In fact, there was a rather conservative judge on the panel that also voted for rehearing, possibly because he wanted to increase gun rights in D.C., but that remains by and large unreported.
Gordon: Michele, it almost sounds like you’re defending Garland.
Michele: That’s the thing. It’s such a polarizing topic, everyone has their own spin; but you have to look at the facts to get a real feel of the thing. It’s a sad state of affairs when just examining the facts makes it sound like you’ve taken a stance.
Gordon: It seems like even though Garland was involved in that case, it’s pretty much impossible to determine exactly how he feels about firearms from that alone. Let’s move on to NRA v. Reno then.
Michele: NRA v. Reno was a case regarding the ATF keeping information on firearm purchasers for up to six months after their purchase.
Gordon: And how did Garland come down in that case?
Michele: Keep in mind, the law regarding NICS checks prohibited a registry of gun owners. So, in NRA v. Reno, the question brought to the Appellate court was, “Did this temporary six-month retention violate the prohibition against creating a registry?” Garland voted that it did not.
Gordon: Okay, well now it sounds like there’s some ammunition to use against Garland — pun very much intended. Was it appealed past that level?
Michele: Yes. The NRA appealed it to the Supreme Court, but the Court refused to hear the case.
Gordon: So, essentially, the Supreme Court agreed with the Appellate court’s review?
Michele: That’s right. Moreover, that was while Scalia was still on the Supreme Court panel; the same Scalia that was so crucial in Heller to keeping the Second Amendment from becoming a footnote in history!
Gordon: So even a rather conservative leaning Supreme Court didn’t find issue with the Appellate ruling.
Gordon: So, essentially, Garland has been mostly silent, and no true conclusions can be drawn from these decisions. At the end of the day, however, he was nominated by President Obama, who has not expressed much kindness when it comes to guns.
Michele: To say the least. Despite being the best firearm and ammunition salesman in the country, Barack Obama hates guns. It would be ludicrous to think that the President didn’t sit Garland down and make sure he was on the same page.
Gordon: I guess only time —and the senate — will tell whether or not Garland is successfully nominated!