Daily Archives: March 19, 2016

UPDATE 11:43 a.m. ET: President Barack Obama nominated Judge Merrick Garland, citing bipartisan respect in the past, to fill the vacancy on the U.S. Supreme Court left by the death to Justice Antonin Scalia.

Garland, 63, is the chief judge of the U.S. Court of Appeals for the District of Columbia Circuit, where he has served since 1997.

I said I would take this process seriously and I did. I chose a serious man and an exemplary judge, Obama said standing next to Garland in the Rose Garden Wednesday morning. To find someone who just about everyone not only respects, but genuinely likesthat is rare.

Judge Merrick B. Garland speaks after being nominated to the US Supreme Court as U.S. President Barack Obama looks on, in the Rose Garden at the White House, March 16, 2016 in Washington, DC. Garland currently serves as the chief judge on the United States Court of Appeals for the District of Columbia Circuit, and if confirmed by the US Senate, would replace Antonin Scalia who died suddenly last month. (Chip Somodevilla/Getty Images)

Senate Republicans have vowed to block any nominee Obama puts forward, preferring to let voters choose the kind of justice who will replace Scalia through the 2016 presidential elections.

Garland comes in with a mixed record and will likely face scrutiny from Republicans about his stance on the Second Amendment.

As a Justice Department attorney in the 1990s, he assisted in the high profile prosecutions of Oklahoma City bomber Timothy McVeigh and Unabomber Ted Kaczynski.

President Bill Clinton named Garland to the D.C. Circuit Court in 1997 and he was confirmed by a bipartisan vote in the Senate.

Fidelity to the constitution and the law has been the cornerstone of my professional life and it is the hallmark of the kind of judge I have tried to be for the past 18 years, Garland said Tuesday in the Rose Garden. If the Senate sees fit to confirm me to the position for which I have been nominated today, I promise to continue on that course. Mr. president, its a great privilege to be nominated by a fellow Chicagoan.

In the D.C. vs. Heller gun case, which eventually made it to the Supreme Court, a three-judge panel of the D.C. Circuit struck down most of the Washington, D.C., handgun ban. However, Garland joined Judge David Tatel in voting to have the full court reconsider the decision. Garland and Tatel were on the losing side when the Supreme Court recognized the individual right to bear arms in the Heller case and struck down the districts ban.

There is no freedom more fundamental than the right to defend ones life and family, said Erich Pratt, executive director of the Gun Owners of America. The Heller and McDonald decisions are hanging by a thread, as both were decided by 5-4 majorities. If Garland were confirmed, we can expect to see more gun registration, more gun bans, more limitations on ammunition, and all of it would be approved by the Supreme Court.

In a National Review piece, Carrie Severino, chief counsel for the Judicial Crisis Network, also wrote about Garland voting to uphold an executive action by President Clinton to establish what some considered a de facto gun registration requirement.

But Garland has a long record, and, among other things, it leads to the conclusion that he would vote to reverse one of Justice Scalias 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 ones 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, theres a good chance that the Supreme Court wouldnt have had a chance to protect the individual right to bear arms for several more years

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 hes willing to uphold executive actions that violate the rights of gun owners. Thats not so moderate, is it?

Garland does have a somewhat centrist record, siding with the Bush administration in a key terror case. In 2003, he joined an opinion on the D.C. Circuit prohibiting Guantanamo Bay prisoners from challenging their detention from appealing in civilian courts. The Supreme Court, in 2008, overturned this ruling in the case of Rasul v. Bush.

Senate Majority Leader Mitch McConnell (R-Ky.) said the choice should be up to the voters, and without speaking no ill of Garland, said: This is not about the person. It is about the principle.

Obama said he is doing his job in nominating a justice and called on the Senate and insisted that Republicans in the Senate give Garland a hearing and a vote.

Presidents dont stop working in the final year of their term, Obama said. Neither should a Senator.

Read more here:
Obamas Supreme Court Nominee Revealed

Any discussion of the right to bear arms has to take note of the Second Amendment. Here's Anthony Mason:

At the heart of the debate over guns in America is a single, inscrutable sentence: The Second Amendment of the Bill of Rights, whose wording is unusual.

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"The Second Amendment says, '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.' What does that mean?"

The most-disputed clause in the Constitution is the phrase about militias, which were a great concern when the Bill of Rights was written in 1792.

"At the Constitutional Convention in Philadelphia, there was a very big controversy about how to allocate military power," said Nelson Lund, professor of constitutional law at George Mason University. He says the states feared the new government would try to disarm the 13 state militias, which required every white male over 16 to own a musket.

"The anti-Federalists were very worried that the states would be deprived of their power to resist federal tyranny," Lund said.

"The militia, sir, is our ultimate safety," Patrick Henry argued. "We can have no security without it."

While guns were commonplace then, so were gun regulations. New York and Boston prohibited the firing of guns within city limits.

And in the notes for the Constitutional Convention, Waldman says, "There's literally not a word about it protecting an individual right for gun ownership for self-protection, hunting, or any of the other things we think about now."

"There's one side that believes that this amendment refers specifically and only to militias," said Mason.

"Well, I know people say that, but it just can't be true," replied Lund. "If you look at what the words say, it says 'The right of the people to keep and bear arms.' It does not say, 'The right of the states' or 'The right of the militias.' It says 'the right of the people.'"

The debate over the Second Amendment came to a head at the Supreme Court in 2008, in a case filed over the Capital's gun laws, called District of Columbia v. Heller. In a 5-4 vote, the court affirmed an individual's right to keep and bear arms, striking down D.C.'s ban on handguns in the home.

'The inherent right of self-defense," Justice Antonin Scalia wrote in the majority opinion, "has been central to the Second Amendment right."

But, Scalia added, "The right ... is not unlimited," also leaving room for gun regulation.

Lund said, "It is absolutely a continuing grey area."

Another grey area is how the court might rule on future Second Amendment issues after the sudden death of Justice Scalia in February.

"So, you know, a lot depends on who replaces Justice Scalia," said Lund.

For more info:

More from "Guns and America":

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Parsing the Second Amendment - CBS News