Soon after President Barack Obama nominated Merrick Garland to the Supreme Court on Wednesday, commentators on the left and right zeroed in on his interpretation of the Second Amendment—and seemed to agree that he’s not a big fan. The New Republic’s Jeet Heer wrote that Obama chose Garland because he wants a “reliable gun control justice.” Daniel Horowitz of the Conservative Review speculated that Garland would “be the 5th vote to overturn the Second Amendment,” a sentiment echoed by Breitbart and the Blaze.
It may well be the case that Garland takes a limited view of the Second Amendment; Obama is undoubtedly keen to appoint a judge who will refuse to invalidate gun safety measures. But the truth is that, as of right now, we have no idea what Garland thinks about gun rights. And anyone who suggests otherwise is basing that view not on facts but on the talking points from an anti-Garland activist.
The suddenly widespread consensus that Garland opposes an individual right to bear arms springs largely from a March 11 post in National Review by Carrie Severino, chief counsel for the Judicial Crisis Network. A right-wing lobbying group devoted to blocking as many of Obama’s judicial nominees as possible, the JCN has tested out smear campaigns against many of the judges on the president’s shortlist. (National Review has obligingly published these attacks in article form, lending them a whiff of legitimacy.) Severino and her group smeared Sri Srinivasan for representing a client who sued her employer, a religious school, after it fired her for having a disability. Disgustingly, the JCN also vilified Jane Kelly for representing a child molester during her time as a public defender.
Garland wasn’t such an easy target: He helped to prosecute the Oklahoma City bombing attackers and the Unabomber, so calumnious condemnations of his work as a lawyer wouldn’t fly. Instead, Severino focused on Garland’s votes in two gun-related cases that reached the D.C. Circuit. She cites these votes as proof that Garland “has a very liberal view of gun rights,” is “willing to uphold executive actions that violate the rights of gun owners,” and “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.”
Is any of this even remotely true? Let’s turn to the cases to find out.
First up is NRA v. Reno, a 2000 case that doesn’t even involve the Second Amendment. The Brady Handgun Violence Prevention Act required the attorney general to establish a “national instant criminal background check system,” known as the NICS, to search the backgrounds of prospective gun buyers. When a person buys a gun, the dealer must submit identifying data (name, date of birth) to the NICS, which is run by the FBI. Once the background check is complete and the sale is finalized, the FBI must “destroy all records … relating to the person or the transfer” of the gun.
Yet the Brady Act does not say just how quickly these records must be destroyed. Thus, the FBI asked then–Attorney General Janet Reno to retain records for no more than six months, so it could perform a system-wide audit. An audit, the FBI asserted, would help the bureau to “identify instances in which the NICS is used for unauthorized purposes, such as running checks of people other than actual gun transferees, and protect against the invasions of privacy that would result from such misuse.” It would also “determine whether potential handgun purchasers or [gun dealers] have stolen the identity of innocent and unsuspecting individuals or otherwise submitted false identification information, in order to thwart the name check system.” In other words, the audit would screen for fraud and privacy abuse.
Reno agreed to let the NICS temporarily retain records for, at most, six months. The NRA sued, alleging that the data retention violated the Brady Act. It lost at the D.C. Circuit. Garland sided with Reno in an opinion that, essentially, stated the obvious: The Brady Act “does not say ‘destroy immediately’; it says only ‘destroy.’ When Congress wants to instruct an agency not only to take certain action, but to take it immediately, it knows how to do so.” The court deferred to Reno’s interpretation of the law. When John Ashcroft replaced her, he nixed the retention program and the audit.
Severino calls the data-retention plan “an illegal Clinton-era regulation that created an improvised gun registration requirement.” That is really very silly, and plainly untrue. At most, Garland’s vote in NRA v. Reno demonstrates his willingness to defer to a federal agency’s interpretations of ambiguous statutes. Once upon a time, that was a conservative principle.
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.