Blog ››› ››› TIMOTHY JOHNSON
The NRA complained that media outlets are ignoring their false attacks on President Obama’s Supreme Court nominee Merrick Garland in an article that offered more falsehoods.
In a May 24 article at the NRA’s online magazine America's 1st Freedom, Chris Cox, the NRA’s top lobbyist who also runs the group’s political efforts, lashed out at the New York Times editorial board for dismissing the NRA’s false claims about Garland’s record. Cox’s article, titled “Media Ignore Facts In Dismissing NRA’s Concerns About Supreme Court Nominee,” criticized the Times for concluding that there is “no fact-based reason” for the NRA to claim Garland is hostile to the Second Amendment.
In complaining about “the most extreme case of media bias in recent memory,” Cox accused the Times of “spouting assumptions without checking facts” and “journalistic malfeasance to insist that the NRA has no basis for opposing him.”
To make the case that Garland’s record does indicate an anti-gun bias, Cox went on to cite Garland’s role in the 2007 decision Parker v. District of Columbia which came before the U.S. Court of Appeals for the D.C. Circuit where Garland is now chief judge.
But Garland’s role in this decision was minimal, and countless legal experts have repeatedly refuted claims that it indicates any particular views on the Second Amendment.
Here are the facts about the Parker case.
In a 2-1 panel decision -- in which then-circuit judge Garland did not participate -- the D.C. Circuit reversed a lower court's decision upholding D.C.’s handgun ban, finding that the law violated the Second Amendment.
Following the ruling, Garland was one of four judges -- including George H.W. Bush appointee Judge Raymond Randolph -- who voted whether to have the entire D.C. Circuit rehear the case in a procedural move known as an en banc rehearing. A majority of D.C. Circuit judges voted not to rehear the case, and it moved on to the Supreme Court, where it became the landmark Second Amendment decision District of Columbia v. Heller.
In the NRA article, Cox falsely alleged that Garland’s vote to rehear the case means that he would have reversed the decision striking down D.C.’s handgun ban, writing, “the fact is, judges do not vote to rehear decisions with which they agree. If a judge thinks a panel’s opinion was wrong, he or she votes to have the full court rehear it. If a judge thinks a panel’s opinion was correct, he or she lets it stand. Plain and simple.”
According to the Federal Rules of Appellate Procedure, Cox is wrong to claim that a vote to rehear a case indicates that a judge agrees or disagrees with the court’s initial ruling.
As Rule 35 explains, en banc rehearings “ordinarily will not be ordered unless” there is disagreement among courts about the correct outcome of the case or if “the proceeding involves a question of exceptional importance”:
(a) When Hearing or Rehearing En Banc May Be Ordered. A majority of the circuit judges who are in regular active service and who are not disqualified may order that an appeal or other proceeding be heard or reheard by the court of appeals en banc. An en banc hearing or rehearing is not favored and ordinarily will not be ordered unless:
(1) en banc consideration is necessary to secure or maintain uniformity of the court's decisions; or
(2) the proceeding involves a question of exceptional importance.
According to PolitiFact, both conditions of the en banc rule were satisfied by the Parker case. Indeed, the case came at a time when there was disagreement among the courts about whether the Second Amendment conferred a “collective” or “individual” right.
The case was also exceptionally important -- the Supreme Court at the time had not made a significant ruling on the meaning of the Second Amendment since 1939 in United States v. Miller. In fact, the question of whether handgun bans were permissible under the Second Amendment was so important that the NRA spent years crafting a case to challenge the D.C.’s handgun ban. (The NRA’s case, Seegars v. Gonzalez was poorly crafted, and the NRA later joined the Parker efforts.)
Legal experts have refuted the type of claim being made by the NRA about Garland's vote to rehear Parker. As Andrew Bradt, assistant professor of law at the University of California, Berkeley, School of Law explained, “A vote to rehear a case can be based only on the importance of the issue and the need to have the full court address it or it can be because the issue is a complicated and confusing one that demands the clarity provided by a discussion of the full court of appeals. It doesn't at all indicate a pre-judgement that the panel's decision was wrong.”
The claim that Garland’s en banc vote in Parker means that he is anti-gun is a smear was first developed by the Judicial Crisis Network (JCN), a discredited right-wing group that is spending millions to oppose Garland's nomination, and now is repeated by the NRA. Numerous legal experts, however, have already debunked the claim that an en banc vote is representative of how a judge would rule on the merits if the case were reheard. Plain and simple.