Supreme Court Reporters Debunk Judicial Crisis Network Claim That Merrick Garland Is Anti-Gun

››› ››› ZACHARY PLEAT

National journalists covering the courts and legal issues are rejecting the claims from the discredited Judicial Crisis Network that a 2007 vote by Supreme Court nominee Judge Merrick Garland to rehear a case on Washington, D.C.'s handgun ban means he is hostile to Second Amendment rights. In fact, Garland never voted to uphold the ban, and a very conservative Republican judge joined him in voting to rehear the case.

Media Matters will continue to update this post with new examples as they occur.

Obama Names Judge Merrick Garland As His Nominee To The Supreme Court

President Obama Announces Judge Merrick Garland As His Nominee To The Supreme Court. President Obama named Merrick Garland, the chief judge of the United States Court of Appeals for the District of Columbia, to fill the vacancy on the Supreme Court. Garland has served on the D.C. Circuit since 1997. [The Associated Press, 3/16/16]

Judicial Crisis Network Claims Garland Is Anti-Gun Based On 2007 Vote To Rehear Gun Case

JCN Chief Counsel: Garland's Vote To Rehear A Case On Handgun Restrictions Indicates "He Has A Very Liberal View On Gun Rights." In a March 11 post on National Review's Bench Memos legal blog, Judicial Crisis Network chief counsel Carrie Severino wrote that a vote Garland cast to rehear a 2007 case on Washington, D.C.'s handgun ban disproved Garland's reputation as a "moderate." She said it revealed his "very liberal view on gun rights" because he had agreed with Judge David Tatel, "one of the most liberal judges on the court." She added that his vote signaled a desire to overturn Justice Antonin Scalia's opinion in the Second Amendment case D.C. v. Heller, which upended precedent and set a new standard for the constitutional scope of gun restrictions:

As the White House prepares to choose a nominee for the Supreme Court, they are continuing to suggest that they might nominate a supposed "moderate."

But Garland has a long record, and, among other things, it leads to the conclusion that he would vote to reverse one of Justice Scalia's most important opinions, D.C. vs. Heller, which affirmed that the Second Amendment confers an individual right to keep and bear arms.

Back in 2007, Judge Garland voted to undo a D.C. Circuit court decision striking down one of the most restrictive gun laws in the nation. The liberal District of Columbia government had passed a ban on individual handgun possession, which even prohibited guns kept in one's own house for self-defense. A three-judge panel struck down the ban, but Judge Garland wanted to reconsider that ruling. He voted with Judge David Tatel, one of the most liberal judges on that court. As Dave Kopel observed at the time, the "[t]he Tatel and Garland votes were no surprise, since they had earlier signaled their strong hostility to gun owner rights" in a previous case. Had Garland and Tatel won that vote, there's a good chance that the Supreme Court wouldn't have had a chance to protect the individual right to bear arms for several more years.

[...]

First, it tells us that he has a very liberal view of gun rights, since he apparently wanted to undo a key court victory protecting them. Second, it tells us that he's willing to uphold executive actions that violate the rights of gun owners. That's not so moderate, is it? [National Review, Bench Memos, 3/11/16]

Garland Did Not Participate In The Original Washington, D.C., Gun Ban Ruling. In 2007, the D.C. Circuit Court -- where Garland is chief judge -- issued a ruling in the Parker v. District of Columbia case that challenged the constitutionality of Washington's ban on private handgun ownership. In the 2-1 decision, the D.C. Circuit reversed a lower court's decision that the D.C. ban was constitutional. Justice Laurence Silberman wrote the majority opinion and was joined by Justice Thomas B. Griffith in finding that D.C.'s gun law violated the Second Amendment. Justice Karen L. Henderson dissented. Garland did not participate in the decision. [Media Matters, 3/14/16, 3/16/16]

Journalists Covering Courts And Legal Issues Push Back On JCN's Claims

San Francisco Chronicle's Bob Egelko: Garland's 2007 En Banc Vote "Was In Line With Previous Supreme Court Decisions." On March 17, San Francisco Chronicle courts reporter Bob Egelko explained that, contrary to the Judicial Crisis Network's claim that Garland "has demonstrated a remarkable level of hostility" toward gun rights, Garland's vote to rehear the ruling "was in line with previous Supreme Court decisions that had upheld restrictions on gun ownership, precedents the court discarded in 2008":

Garland has not taken part in major cases on campaign contributions or voting rights. But he has voted to uphold some regulations of firearms, and voted in 2007 to reconsider a ruling striking down the Washington, D.C., ban on handgun ownership - the law that Scalia and the Supreme Court majority declared unconstitutional in 2008.

Garland "has demonstrated a remarkable level of hostility toward the Second Amendment right to keep and bear arms," the conservative Judicial Crisis Network said Wednesday.

But his 2007 vote was in line with previous Supreme Court decisions that had upheld restrictions on gun ownership, precedents the court discarded in 2008. It may have also reflected Garland's overall tendency to step lightly when reviewing decisions by other branches of government. [San Francisco Chronicle, 3/16/16]

NY Times' Adam Liptak: Conservative Groups Are Basing Gun-Related Objections To Garland "On Fairly Thin Evidence." New York Times Supreme Court correspondent Adam Liptak and mid-Atlantic bureau chief Sheryl Gay Stolberg wrote that conservative groups questioned Garland's "commitment to gun rights, although they based their objection on fairly thin evidence":

Conservative groups, who said Judge Garland would move the court sharply to the left, raised questions about his commitment to gun rights, although they based their objection on fairly thin evidence.

In 2007, a three-judge panel of the appeals court, not including Judge Garland, struck down Washington's strict gun control law. Judge Garland voted to have the full court rehear the case, but he was in the minority. He gave no reasons for his vote, which may have been motivated by discomfort with the panel's decision, or by a desire to have the full court address a significant constitutional issue.

In the end, the Supreme Court rejected the gun control law in a majority opinion written by Justice Antonin Scalia, whom Judge Garland would replace if confirmed. [The New York Times, 3/16/16]

Wash. Post's Robert Barnes Noted That "A Republican Judge Joined Garland In Saying" Gun Rights Case "Should Be Reviewed." Washington Post Supreme Court reporter Robert Barnes rebutted the Judicial Crisis Network's claim that Judge Merrick Garland "may be the 'most anti-gun nominee' in decades":

Carrie Severino of the conservative Judicial Crisis Network criticized Garland as anti-Second Amendment. In 2007, he voted with the losing side on whether the entire D.C. Circuit should review a panel's decision that struck down the District's restrictive gun-ownership laws.

She and Brian Rogers, executive director of the Republican group America Rising Squared, said Garland may be the "most anti-gun nominee" in decades.

But a Republican judge joined Garland in saying that the landmark ruling about the Second Amendment's protection of individual rights should be reviewed. The whole court did not take up the merits of the panel's decision. The Supreme Court agreed with the appeals court in a dramatic 5-to-4 decision, with the majority opinion written by Scalia. [The Washington Post, 3/16/16]

Slate's Mark Joseph Stern: Conservatives "Have No Evidence ... Whatsoever" That Garland Is "A Warrior Against The Second Amendment." Slate legal writer Mark Joseph Stern wrote a March 16 post explaining that Garland "is being smeared as an anti-gun nut," but that conservatives "have no evidence for that whatsoever," only "talking points from an anti-Garland activist," JCN's Carrie Severino. Stern noted that Garland was joined in his vote to rehear the Washington, D.C., gun case by "conservative darling" Judge A. Raymond Randolph:

Next up is Parker v. D.C., which eventually reached the Supreme Court as Heller v. D.C. In Parker, a group of Washington, D.C. residents challenged the city's handgun ban. A three-judge panel of the D.C. Circuit held that the Second Amendment provides an individual right to gun ownership--a liberty violated by the D.C. law. Garland wasn't on that panel. But he did vote, without issuing an opinion, to rehear the case en banc, with all judges of the D.C. Circuit sitting and casting votes.

It's not actually clear whether Garland wanted to reverse the panel's decision or simply give the entire circuit an opportunity to consider the merits of the case. Either way, there are two important things to note. First, at that point in time, the Supreme Court had never held that the Second Amendment protects an individual right to bear arms; at most, it had suggested that Americans may own firearms that "have some reasonable relationship to the preservation or efficiency of a well regulated militia." Heller upended this tradition--but Heller didn't exist when the D.C. Circuit decided Parker. Even if Garland disagreed with the panel's decision broadening the scope of the Second Amendment, he would only have been following the established precedent at the time.

Second, Garland was joined by Judge A. Raymond Randolph in voting for a rehearing, a fact Severino fails to mention. Randolph, a George H.W. Bush appointee, is a conservative darling; in fact, the JCN once promoted an event featuring a conversation between Randolph and his good friend, the arch-conservative Judge Robert Bork. You might think Randolph's vote suggests that both liberal and conservative judges on the court wanted the circuit, as a whole, to hear and decide such a momentous, precedent-shattering case. But under the JCN's interpretation, Randolph's vote to rehear Parker reflected nothing less than absolute contempt for the Second Amendment.

And that's it: Those are the two cases that provide the basis for concluding that Garland would be a gun control justice. Perhaps Garland is eager to limit the scope of the Second Amendment. Perhaps he is rearing to expand it. If Senate Republicans held confirmation hearings, we might get more insight into his judicial philosophy on gun rights. But for now, the speculation is little more than narrative-driven nonsense. [Slate, 3/16/16]

NPR Legal Affairs Correspondent Nina Totenberg: Conservative Media Are "Stretching The Truth" To Say Garland Is "Anti-Gun." During a March 20 appearance on CNN's Reliable Sources, NPR legal affairs correspondent Nina Totenberg was asked by host Brian Stelter about conservative claims that Judge Garland is supposedly "anti-gun." Totenberg agreed with Stelter that such claims are "stretching the truth," and explained that as a lower court judge, he was bound by pre-Heller precedent, so "you really can't tell" what his stand on Heller is:

BRIAN STELTER (HOST): First to this issue about the Second Amendment. What is the truth about Garland's stand on the famous Heller case? 

NINA TOTENBERG: Well you really can't tell. You can tell what his view was before Heller, and then you have to wait and see what his view would be if he were confirmed to a Supreme Court seat after Heller

STELTER: So when conservative media outlets say that he's anti-gun, are they stretching the truth? 

TOTENBERG: I think that perhaps that's stretching the truth. But the point is that lower court judges -- and that's what he is -- are bound to follow what the Supreme Court says, and prior to Heller, the Supreme Court had basically said there is no individual right to own a gun. After Heller, there is an individual right to own a gun. And then the question is how much of a right? I mean, how much can the state regulate it? And, you'd have to ask him questions actually in a confirmation hearing. [CNN, Reliable Sources, 3/20/16]

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