In a move calculated to make it difficult for GOP members of the Senate to keep their promise to block any election year Supreme Court nominee, President Obama has today nominated Merrick Garland, chief judge for the U.S. Court of Appeals for the District of Columbia Circuit. Garland’s being characterized — at least my many in the media — as a moderate with a long paper trail, particularly on issues such as criminal justice and the federal government’s powers to fight terrorism. It will probably shock you to learn, however, that on gun rights, he’s not quite so middle-of-the-road . . .
Back in 2008, Dave Kopel wrote a prescient post on the potential effect on gun rights an Obama presidency would have and wrote the following regarding Garland:
Merrick Garland is a judge on the U.S. Court of Appeals for the D.C. Circuit. He could be counted on not only to oppose Second Amendment rights in general, but even to nullify explicit congressional statutes that protect those rights.
In 2007, a three-judge panel of the D.C. Circuit ruled against the D.C. handgun ban in the case of Parker v. District of Columbia (which was the name of the case that eventually became District of Columbia v. Heller when it went before the Supreme Court). The D.C. government asked for a rehearing of the case, before all 10 judges of the D.C. Circuit.
Six judges voted not to rehear the case, while four judges voted for a rehearing, presumably because they disagreed with the three-judge panel that had ruled against the handgun ban. Garland was one of the four judges who wanted a chance to validate the handgun ban.
In 2000, Garland was on a three-judge panel that heard the case of NRA v. Reno. In that case, the Janet Reno Department of Justice had flouted the congressional statutes that prohibit the federal government from compiling a registration list of gun owners, and which required the destruction of national instant check (NICS) records of lawful, approved gun purchases.
Judge Garland voted to let Reno get away with it. He said that registering all the people who were approved by NICS was permissible because Reno was not registering every gun owner in the country. And he said it was fine for Reno to keep gun buyer records for six months because although Congress had said the records must be destroyed, it did not say “immediately.”
So it should surprise no one that in his choice for a Scalia replacement, Obama would select someone with a dim view of Americans’ Second Amendment freedoms. Will the GOP Senate majority hold firm in their pledge to block all nominees until a new president is inaugurated? Watch this space.
[h/t Johannes Paulsen]