Judge Merrick Garland, President Joe Biden’s attorney general nominee, has a troubling record when it comes to recognizing Americans’ Second Amendment rights.
In 2007, Garland voted for an “en banc” review by the U.S. Court of Appeals for the District of Columbia Circuit, where he continues to serve, in the case Parker v. District of Columbia, which would later be known as the landmark Heller v. District of Columbia.
Sen. Mike Lee of Utah questioned Garland about the matter during the nominee’s confirmation hearing before the Senate Judiciary Committee last month.
“The panel decision was the first time, I think ever, a court of appeals had held the individual right to keep and bear arms, which you are exactly right the Supreme Court, did vote to uphold in the end, every court of appeals had decided to the contrary,” the judge recounted.
“The issue was plainly one that would require looking at a deep historical record as to the meaning of the Second Amendment and as to the way it had been applied.”
“I thought this was an extremely important issue. Important enough, since it was the very first time that we should hear it en banc,” Garland said.
The case originated in 2004 when residents of the District of Columbia brought suit against a ban on handguns.
Federal district court Judge Emmet Sullivan, of Michael Flynn case fame, ruled in favor of the D.C. government’s motion to dismiss the suit, rejecting “the notion that there is an individual right to bear arms separate and apart from service in the Militia.”
The Second Amendment states, “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms shall not be infringed.”
A three-judge panel of D.C. Circuit found, in a 2-1 decision, that Sullivan was in error.
“[W]e conclude that the Second Amendment protects an individual right to keep and bear arms,” the judges wrote in their majority opinion.
“That right existed prior to the formation of the new government under the Constitution and was premised on the private use of arms for activities such as hunting and self-defense, the latter being understood as resistance to either private lawlessness or the depredations of a tyrannical government.”
The District of Columbia government sought an en banc (all the judges on the circuit court) review and Garland joined with liberal Judge David Tatel and two others voting in favor of the new hearing. However, the request was rejected overall in a 6-4 vote.
The case then went before the Supreme Court in 2008, where the late Justice Antonin Scalia wrote in a 5-4 majority decision, “we hold that the District’s ban on handgun possession in the home violates the Second Amendment,” adding, “the enshrinement of constitutional rights necessarily takes certain policy choices off the table.”
Carrie Severino, president of the Judicial Crisis Network, concluded based on Garland’s vote for the en banc review he would have ruled to keep the District’s ban in place.
“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,” she wrote for National Review in 2016 after then-President Barack Obama nominated the judge to serve on the Supreme Court.
“Had Garland and Tatel won that vote [for an en banc review], 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,” Severino added.
Moreover, “Garland voted with Tatel to uphold an illegal Clinton-era regulation that created an improvised gun registration requirement,” contrary to a 1968 law prohibiting federal gun registration mandates.
She cited gun rights advocate Dave Kopel, who explained, the Clinton Administration had been “retaining for six months the records of lawful gun buyers from the National Instant Check System.”
By storing the records, the Clinton administration was creating an informal gun registry, contrary to federal law.
Lee questioned Garland at his confirmation hearing whether he agrees that the 2nd Amendment allows people to carry firearms in public for self-defense.
The nominee responded that the Heller and subsequent McDonald v. City of Chicago 2010 decision (which applied Heller to state bans) would control his handling of the issue, but, “The court has not given us much more to work with at this point, and I do think as I said with respect to my vote en banc, this is a matter that requires careful historical examination, which I have never done.
“So I don’t have an opinion on that question,” Garland said.
Wow, two Supreme Court cases and he still could not answer whether the Second Amendment allows people the right to carry firearms in self-defense.
Garland left the door open to universal background checks and the banning of certain gun types.
“As I’m sure you know, the president is a strong supporter of gun control and has been an advocate all of his professional life on this question,” Garland told Lee. “The role of the Justice Department is to advance the policy program of the administration as long as it is consistent with the law.”
Questioned if he supports holding gun manufacturers liable for injuries or death caused by they produce, Garland responded, “I have not thought myself deeply about this. I don’t think it raises a Second Amendment issue itself.”
Doesn’t raise a Second Amendment issue?
If people can’t buy guns, how can they exercise their Second Amendment rights?
Both the NRA-ILA and the Gun Owners of America have come out in opposition to Garland’s confirmation.
“[W]ith Garland at the head of the U.S. Justice Department, ‘justice’ is not likely to accrue to the benefit of America’s law-abiding gun owners or the lawful industries that support them,” the former said.
GOA’s Phil Reboli said in a video about the nominee, his response to Lee’s question about holding gun manufacturers liable, “disqualifies him for the role of attorney general.”
Roll Call reported the Senate Judiciary Committee voted to send Garland’s nomination to the full Senate Monday.
Those voting against confirming included Lee, as well as Sens. Ted Cruz of Texas, Ben Sasse of Nebraska, Josh Hawley of Missouri, Tom Cotton of Arkansas, John Kennedy of Louisiana and Marsha Blackburn of Tennessee.
A floor vote could come as early as this week.