The Second Amendment case against Merrick Garland

posted at 1:01 pm on March 19, 2016 by Jazz Shaw

Just in case the GOP leadership completely caves in on the pending SCOTUS nomination this year (not that they have a history of doing that or anything) it’s probably worth taking a look at just what we’ll be getting if Merrick Garland ascends to the highest court in the land. We’ve heard repeated drumbeats in the media about how he’s the moderate choice who won’t satisfy liberals and he’s the best conservatives could hope for out of this president. To a certain extent there may be some truth to that because there are clearly far more odious choices out there waiting in the wings. (Justice Elizabeth Warren, anyone?)

But just because you’re not dealing with the absolute worst pick possible, that doesn’t mean that it’s still not disastrously bad. There are any number of issues where Garland would likely twist the court into one of the most liberal we’ve seen in our lifetimes, none quite so serious as the question of fundamental Second Amendment rights. Chris Cox of the NRA-ILA took to the pages of the Washington Post this week with all the evidence you should need to push against putting Garland in that seat even if Barack Obama had three years left in office.

From upholding a federal registry of law-abiding gun owners derived from the instant-background-check system created by the Brady Bill to siding with the District government by voting for a do-over in a Second Amendment decision that invalidated the D.C. handgun ban — exactly what the Supreme Court rightfully struck down in Heller — Garland has proved, the NRA believes, he does not support the Second Amendment.

If Garland joins Ginsburg, Stephen G. Breyer, Sonia Sotomayor and Elena Kagan on the court, we believe they will overturn Heller and McDonald at the first opportunity. While claiming to support Heller during her Senate confirmation hearings, Sotomayor wasted no time in trying to overturn that historic decision. Kagan spent her time in the Clinton White House pushing for gun control. Breyer has made his opposition to Heller and McDonald abundantly clear through his dissents in those cases. And as mentioned previously, Ginsburg publicly spoke about her desire for a future court to overturn Heller.

Garland’s record is clear on this issue as well as many others. No amount of meetings, hearings or question and answer sessions with the Senate are going to provide any evidence to the contrary. At this point, Supreme Court confirmation hearings for appointments from presidents of either party are far more reminiscent of Academy Awards acceptance speeches than any sort of fact finding mission. As Cox points out, Sonia Sotomayor sat through her hearings and basically lied through her teeth about the Heller decision, claiming to support and respect it as settled law, and then immediately turned around and began working to undermine it at every opportunity. These are dog and pony shows intended to tamp down opposition in the Senate and smooth the glide path for confirmation.

We should expect no less (or perhaps no more would be the correct phrase) from Merrick Garland. His past decisions make this clear and Cox has identified them ably. You could easily layer on similar arguments for those in the pro-life movement, religious liberty proponents and a raft of other issues, but we need to remember that respect for precedent on the nation’s highest court is pretty much a thing of the past. The Heller and McDonald cases which finally codified the Second Amendment as in individual right were passed on a knife edge, and that knife is about to turn around and slash in the other direction if either Barack Obama or Hillary Clinton are allowed to fill not only this seat on the court but the likely three or four to follow.


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