NRA Wastes No Time Promoting Bogus Gun Claims Against SCOTUS Nominee Merrick Garland

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Written by Timothy Johnson

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The National Rifle Association (NRA) responded to President Obama's nomination of Merrick Garland to the Supreme Court by repeating a smear on Garland's record on guns that originated from the discredited right-wing Judicial Crisis Network (JCN). Following Obama's announcement, the NRA wrote on Twitter that Garland “is bad on guns,” touting a debunked National Review article where JCN's chief counsel distorted Garland's record as a judge on two gun cases.

NRA Declares Garland “Bad On Guns”

Garland, The Chief Judge Of The D.C. Circuit, Is A Respected Jurist With Nearly Two Decades Of Experience. President Obama named Garland, the chief judge of the United States Court of Appeals for the District of Columbia Circuit, to fill the vacancy on the Supreme Court during an event at the White House. Garland has served on the D.C. Circuit since 1997. [CNN, 3/16/2016]

NRA: Garland “Is Bad On Guns.” The NRA responded on Twitter by promoting JCN's attack on Garland at National Review:

NRA Repeats JCN's False Claim There Is Evidence Garland Would Overturn Landmark Second Amendment Decision. The NRA subsequently repeated JCN's baseless suggestion that Garland's record as a judge on the D.C. Circuit indicates that he would overturn the landmark Second Amendment case District of Columbia v. Heller:

The NRA Is Repeating JCN's Smear Of Garland

JCN MYTH: Garland's Vote To Rehear A 2007 Case On D.C.'s Handgun Ban Reveals A “Very Liberal View On Gun Rights”

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 at National Review's Bench Memos legal blog, Judicial Crisis Network chief counsel Carrie Severino wrote that a vote Garland cast to re-hear a 2007 case on Washington, D.C.'s handgun ban disproved Garland's reputation as a “moderate,” revealing 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 his vote signaled a desire to overturn Justice Scalia's opinion in the Second Amendment case D.C. v. Heller, which is current precedent 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.

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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]

FACT: Garland Was Joined By A Well-Known Conservative Judge, Among Others, In Voting To Rehear The Case

Garland Voted, Along With Three Other Judges, To Rehear A 2007 Case That Had Overturned D.C.'s Handgun Ban. In March 2007, a panel of three judges -- not including Garland -- issued a decision in Parker v. District of Columbia, overturning a lower court case to rule that D.C.'s ban on handgun ownership violated the Second Amendment. After the decision, Garland was one of four judges who voted to rehear the case en banc, a procedure in which the full court can reconsider the case and decide differently. In a 6-4 decision, the court declined to rehear the case en banc. [Media Matters, 3/14/16]

Well-Known Conservative Judge A. Raymond Randolph Also Voted To Rehear The Case. The four votes to rehear the Parker case also included one cast by Judge A. Raymond Randolph, a George H.W. Bush appointee to the D.C. Circuit and a well-known conservative. In fact, JCN -- then still operating under the name Judicial Confirmation Network -- promoted a discussion between Randolph and ultra-conservative jurist and rejected Supreme Court nominee Robert Bork months after Randolph joined Garland in voting to rehear Parker. [Media Matters, 3/14/16]

NY Times' Greenhouse Described Randolph As “One Of The Most Outspoken And Agenda-Driven Conservatives On The Entire Federal Bench.” In a 2014 opinion piece discussing a legal challenge to the Affordable Care Act, New York Times contributor Linda Greenhouse, whose work focuses on the Supreme Court and law, wrote of Judge Randolph:

Judge Randolph is one of the most outspoken and agenda-driven conservatives on the entire federal bench. In a speech to the far-right Heritage Foundation in 2010, for example, he denounced the Supreme Court for having granted habeas corpus rights to the Guantánamo detainees and compared the justices to Tom and Daisy Buchanan in “The Great Gatsby,” “careless people who smashed things up” and “let other people clean up the mess they made.” [The New York Times, 8/20/14]

JCN MYTH: Garland Upheld An “Illegal Clinton-Era Regulation” Creating A Gun Registry Requirement

In National Review, Severino Alleged Garland Voted “To Uphold An Illegal Clinton-Era Regulation That Created An Improvised Gun Registration Requirement.” Also in her March 11 post to National Review's Bench Memos legal blog, Severino argued that Garland had voted to “uphold an illegal Clinton-era regulation” and that Garland is “willing to uphold executive actions that violate the rights of gun owners”:

Moreover, in the case mentioned earlier, Garland voted with Tatel to uphold an illegal Clinton-era regulation that created an improvised gun registration requirement. Congress prohibited federal gun registration mandates back in 1968, but as Kopel explained, the Clinton Administration had been “retaining for six months the records of lawful gun buyers from the National Instant Check System.” By storing these records, the federal government was creating an informal gun registry that violated the 1968 law. Worse still, the Clinton program even violated the 1994 law that had created the NICS system in the first place. Congress directly forbade the government from retaining background check records for law abiding citizens.

Garland thought all of these regulations were legal, which tells us two things. 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]

FACT: The Regulation Garland Ruled To Uphold Was Considered In Multiple Courts And Never Found “Illegal”

Majority Opinion In NRA v. Reno Case, Which Garland Joined, Affirmed A Lower Court Ruling That The Regulation Was Lawful. The decision in the 2007 D.C. Circuit case National Rifle Association v. Reno found that, while the FBI's National Instant Criminal Background Check System (NICS) for gun purchases did temporarily retain data of gun owners for the purpose of audits, the practice was lawful and did not violate a federal prohibition on creating a registry of gun owners. Judge Tatel authored the 2-1 majority opinion, and was joined by Garland. Tatel wrote:

Finding nothing in the Brady Act that unambiguously prohibits temporary retention of information about lawful transactions, and finding that the Attorney General has reasonably interpreted the Act to permit retention of such information for audit purposes, we affirm the district court's dismissal of the complaint. [National Rifle Association of America, Inc. v. Reno, U.S. Court of Appeals, D.C. Circuit, 7/11/00]

The NRA Appealed The Decision To The Supreme Court, And The Court Declined To Take Up The Case. Following the D.C. Circuit decision to affirm the legality of the FBI's background check system for gun purchases, the NRA appealed the case to the Supreme Court. The conservative-leaning court “without comment, turned aside the NRA's challenge,” as reported by the Associated Press. [Associated Press, 6/26/01]