Garland’s Antagonism Toward The Second Amendment

By Roger J. Katz, Attoney at Law and Stephen L. D'Andrilli
Liberal Law Professors Send Open Letter to Chairman of Judiciary Committee, Senator Charles Grassley, Urging the Senator to Hold a Hearing and Vote on Obama’s Nominee to the U.S. Supreme Court, Judge Merrick Garland.

The Arbalest Quarrel Responds, Sending its Own Letter to Senator Grassley, Rebutting Claims and Assertions of Law Professors.

Arbalest Quarrel
Arbalest Quarrel

New York, NY  -(Ammoland.com)-  “For it is a truth, which the experience of ages has attested, that the people are always most in danger when the means of injuring their rights are in the possession of those of whom they entertain the least suspicion.” Alexander Hamilton, Federalist No. 25, 12/21/1787

For the moment the stars seem aligned in Mr. Obama’s favor. So much so, he will suffer no one confounding his ambitions to subvert the U.S. Constitution, in order to weaken our Sovereign Nation, thus paving the way for an EU style North American Union. The universe does not bend backwards to President Obama’s beck and call, of course, but that does not stop him from using the power of the U.S. Presidency to obtain what he wants.

Before leaving Office, Obama intends to fill the ninth seat on the U.S. Supreme Court.

The Senate has confirmed Obama’s previous two short-list candidates to the Supreme Court, Sonia Sotomayor and Elena Kagan, and he is obsessed with and adamant about confirming his third short-list candidate to the high Court before he leaves Office: Judge Merrick Garland. That possibility conveniently materialized with the passing of Justice Scalia.

Obama intends to stack the deck, 5 to 4, in favor of the liberal wing of the high Court.

The mainstream media has obsequiously acted on Obama’s behalf, bombarding the American public incessantly with articles and editorials, extolling Garland’s many presumed virtues. Public Officials got into the act as well. Vice President Joe Biden heralded Garland’s candidacy in a speech he gave to law students at Georgetown Law School. That speech was followed by one Obama, himself, gave to Chicago Law School Students, where, ironically enough, the President had, at one time, taught “Constitutional law” – with emphasis, since he became President, more on the “CON” and less on the “LAW.” Harry Reid, Senate Minority Leader, added his two-cents on the Floor of the Senate, as well.

Judge Merrick Garland
Judge Merrick Garland

The cacophony of gushing praise continues unabated through endless iterations. Most disheartening, several liberal law scholars have added their own voice to the mix. They claimed, in a letter sent by email, on March 31 2016, addressed to Senators Grassley and Leahy, that no inference can be drawn from Garland’s judicial record to suggest that Garland would pose a threat to the preservation of the Second Amendment were he to gain a seat on the high Court.

The central theme of the scholars’ letter to Senators Grassley and Leahy is that Garland’s actions in the Parker and Reno cases do not illustrate anything that might hint of the Judge’s legal and philosophical views toward the Second Amendment.

We, at the Arbalest Quarrel, however, vehemently disagree with that assertion. Parker and Reno tell the public much about Garland’s jurisprudence and methodological approach to Second Amendment legal and logical analysis. The Scholars’ letter is cagey because they hesitate to assert that Garland would be an avid defender of the Second Amendment – which in definitive contrast, as we know, Justice Scalia definitely was.

The Arbalest Quarrel therefore felt compelled to send out its own letter to Senator Grassley, in rebuttal to the March 31 2016 letter the Senator received from the liberal legal scholars.

We have posted our letter for your review, in an accompanying post on this site. Please see the Professors' March 31 letter sent by email to Senators Grassley and Leahy, for a side-by-side comparison.

We feel it important to respond to the letter from academia for another reason. The academicians’ letter marks the first instance, we are aware of, that provides for public consumption something transcending empty praise – insofar as the letter actually discusses the Judge’s decisional law.

There are two things Americans must keep uppermost in mind, concerning Obama’s most recent nomination to the U.S. Supreme Court.

One, Garland’s jurisprudential philosophy toward the Second Amendment and the methodology he uses to decide legal cases are in perfect sync with those of Justices Kagan and Sotomayor. So, don’t for a second think that Judge Garland is a “centrist” – a word invented by the news media to describe him. As applied to Garland, the word is inappropriate, even deceptive. What is our justification for saying this?

Consider the jurisprudential philosophy of Justices Kagan and Sotomayor, Obama’s first two short-list nominees to sit on the U.S. Supreme Court. Their view of the Second Amendment and the methodology they employ to decide cases are now well known. Their attitude toward the Second Amendment, in particular, is not one of deference. It is one diametrically opposed to that of the late Justice Scalia.

It would stretch credulity to believe that Obama would nominate a person to the high Court who did not share his own views toward the Bill of Rights in general and toward the Second Amendment in particular. Justices Kagan and Sotomayor clearly share Obama’s views. Judge Merrick Garland is no different.

The three Judges, Kagan, Sotomayor, and Garland, think alike, act alike, and operate as one. Together, they comprise three arms of a “Judicial Equilateral Triangle,” by which and through which Obama intends to defeat the Second Amendment.

Two, if the Senate acquiesces to the shrill, belligerent cries for a hearing and vote on Garland’s nomination to a seat on the U.S. Supreme Court, Garland likely will be confirmed. How do we know this? Senator Lindsey Graham, Republican South Carolina, who met with Judge Garland, briefly discussed that meeting with Kate Bolduan, broadcast journalist for CNN, on Thursday, April 21, 2016.

Yes, Senator Graham did assert there is less than a “snowball’s chance” that the Senate will relent and give Garland a hearing while Obama remains in Office. But, he added a chilling prognostication. He made poignantly clear that, if the next President were to nominate Garland and if the Senate, at that time, proceeds to a hearing and vote, Garland will be confirmed.

By the way, Senator Graham, voted to confirm Obama’s previous two nominees to the Supreme Court: Sotomayor and Kagan. He made clear enough, during the CNN interview, he would vote to confirm Garland too were the Senate to hold a hearing on the nomination.

During the interview on CNN, Senator Graham referred to Garland, as “a good man,” “a fine man.” The Senator added: “not one blemish on [Garland’s] record.” We must ask: is Senator Graham familiar with the Judge’s decisional law? If so, the Senator does not, apparently, see that Garland’s antagonism toward the Second Amendment constitutes “a blemish.”

How many other Republicans would vote to confirm Judge Garland’s nomination to a seat on the U.S. Supreme Court?

Of course if Hillary Clinton – who is virtually assured of the Democratic Party nomination for U.S. President – becomes the next President of the United States, assuming she doesn’t face criminal indictment, the Second Amendment will be under incessant attack by the three Branches of Government. It will be under attack in the Halls of Congress; it will be under attack in the Executive Office; and it will be under attack in the highest Court of the Land. The public will witness the liberal wing of the Court systematically out-voting the conservative wing, 5 to 4, on matters directly impacting the Bill of Rights, at every turn. Justice Scalia’s legacy on the high Court will be undone.

The bottom line: The U.S. Senate should not and better not accede to a hearing on Obama’s nomination of Garland on the U.S. Supreme Court. We cannot let Obama stack the deck with another liberal Justice who will destroy our sacred Bill of Rights by judicial fiat. Hopefully, a Republican President will succeed Obama and nominate a Jurist to the high Court whose jurisprudential philosophy and methodology for reviewing cases is in the same vein as that of Justice Scalia.

But God help the American people if Hillary Clinton becomes the 45th President of the United States. We all know what that portends for the Nation, its citizenry, and for the Bill of Rights. It won’t be pleasant.

 

ARBALEST QUARREL LETTER DIRECTED TO SENATOR CHARLES GRASSLEY, CHAIRMAN OF THE SENATE JUDICIARY COMMITTEE

April 26, 2016

[ADDRESSED TO THE HONORABLE CHARLES E. GRASSLEY]

Re: President Obama’s Nominee for Justice of the U.S. Supreme Court, Merrick Garland

Dear Senator Grassley:

I am an attorney who specializes in Constitutional law. Together with my colleagues we publish the Arbalest Quarrel, a unique, informative website, specializing in formal analyses of State and federal firearms’ legislation and court decisions. Our articles are published throughout the Nation, in major magazines that are read by millions of people.

This is a rebuttal to an open letter, dated March 31, 2016, you received from several academicians urging you to allow a confirmation hearing and vote on Judge Merrick Garland, President Obama’s third short list nomination to the U.S. Supreme Court. We have serious misgivings as to Judge Garland’s suitability to serve as a Justice on the U.S. Supreme Court to fill the vacant seat.

The analysis of Judge Garland’s qualifications is critically important to the Bill of Rights of the U.S. Constitution, to the Second Amendment that is defined therein, and to the preservation of a free Republic.

The professors, who co-authored the letter, claim expertise on Second Amendment matters. They attempt to allay concerns over Judge Garland’s jurisprudential approach to the Second Amendment, but their comments raise questions about the Judge’s suitability to sit on the high Court.

In their defense of Judge Garland the academicians cite to two cases that have been the focus of attention. One of the cases is Parker vs. District of Columbia. Parker deals directly with the Second Amendment. The second case is National Rifle Association of America, Inc. vs. Reno. The Reno case deals tangentially with the import of the Second Amendment but definitely impacts the Second Amendment right of the people to keep and bear arms.

The authors attack NRA’s stance, asserting: “[t]he NRA claims that Judge Garland is hostile to the Second Amendment, but there is nothing in his record that supports such an attack.” An analysis of the facts proves them wrong. There is much in the cited cases that would spark debate in the U.S. Senate that Judge Garland has little regard for the fundamental right of the people to keep and bear arms. In Parker the lower District Court ruled in favor of the District of Columbia’s law that bans civilian possession of handguns. On appeal the U.S. Court of Appeals for the D.C. Circuit reversed the decision of the lower District Court. The Defendant, District of Columbia, requested a rehearing of the adverse decision, en banc. Judge Garland voted in favor of an en banc hearing of the case.

The authors of the March 31 letter argue that Judge Garland’s vote tells us nothing about his position on the Second Amendment. They assert: “[i]t is well established that such procedural votes say nothing about a judge’s views on the substance of the case, or how he or she would have voted on the merits. Yet, Judge Garland’s critics assert that his vote for en banc review “proves” his hostility to the Second Amendment.”

From a legal perspective the assertion is correct. But, from a logical standpoint Judge Garland’s vote for an en banc review of the Parker case reveals the essence of Garland’s lack of regard for the Second Amendment. An en banc review of Parker means the full complement of Judges – all ten – could conceivably reverse the decision of the three Judge panel that ruled in favor of the Plaintiff handgun owners, against the District of Columbia.

Failure of the Court to review the case en banc keeps the decision, against the District of Columbia, intact. Judge Garland’s vote in the Parker case clearly illustrates a position that, if not overtly “hostile” to the Second Amendment, is one certainly inconsistent with the import and purport of it; for, if Judge Garland were a proponent of the Second Amendment, his vote for an en banc review of the case would be strategically senseless.

Through an en banc hearing there would exist a real possibility that the full complement of Judges would reverse the original ruling of the three-member panel. Obviously, Judge Garland was hoping to overturn the decision of the three Judge panel, realizing there was much to be gained and nothing to lose were the full contingency of Judges empaneled to rehear the case.

Only three U.S. Court of Appeals Judges for the D.C. Circuit voted in favor of an en banc hearing in Parker: Randolph, Tatel, and Garland. Of note: two of the three Judges, Tatel and Garland, decided the Reno case, ruling in favor of the Attorney General, Janet Reno, against NRA. The decision, however, wasn’t unanimous. Judge Sentelle disagreed with the ruling and did so in a strong dissenting opinion.

Judge Tatel wrote the majority opinion in Reno. Judge Garland joined Tatel. Garland did not write his own concurring opinion. That point is notable. It means Judge Garland agreed not only with the erroneous judgment but with Judge Tatel’s faulty reasoning.

Yet, the authors of the March 31 letter do not address the reasoning of the Court’s majority in Reno. They don’t present formal argument in support of the majority opinion. They simply make statements, and the statements are misguided and meritless. The legal scholars assert the decision of the majority was correct because Attorney General, John Ashcroft, “defended the opinion,” saying, “[t]he court of appeals’ decision is correct.” But that tells us nothing illuminating. It merely begs the central question at issue: is the decision correct?

The legal scholars also assert the decision of the majority was correct because the high Court denied NRA’s writ of certiorari. But, the authors of the letter know full well that no party may impose on the high Court as a matter of right. The granting of a writ of certiorari is discretionary and the Court will take up a case when it is consistent with the interests of a majority of the Justices at that particular time to do so, regardless of the merits of a case. The interests of the parties need not and often do not factor in the equation.

But, there is another problem with the legal scholars’ pronouncements. Concerning Parker, they assert, “[a]ny argument that a purely procedural vote reflecting no substantive judgment on the merits of the underlying case is proof that Judge Garland would vote to overturn Heller is specious and dishonest, and unworthy of acceptance by the Committee or the Senate as a whole.”

The point of the remark is that no one can reasonably discern Judge Garland’s views on the Second Amendment on the basis of a purely procedural vote. But, then, concerning Reno, these same scholars assert, inconsistently, that the failure of the U.S. Supreme Court to grant review means, “[t]he Supreme Court agreed [with the decision] and declined to hear the N.R.A.’s appeal.”

Where lies the difference between the procedural vote cast by the U.S. Supreme Court Justices denying the writ in Reno, and the procedural vote cast by the full complement of U.S. Court of Appeals Judges for the D.C. Circuit, denying an en banc hearing in Parker?  If these legal scholars are telling the Senate that no inference can be drawn regarding Judge Garland’s Second Amendment stance in Parker, what is their legal or logical rationale for drawing an inference regarding a U.S. Supreme Court stance on the Second Amendment in Reno? The professors do not explain the discrepancy in their logic.

The authors of the letter suggest the Senate should accept on faith that Judge Garland’s position on the Second Amendment is – if one must speculate – indeterminate. We disagree. His philosophy on the Second Amendment, on the basis of an analysis of Parker and Reno, is clear. It is one not supportive of a strong Second Amendment. It is one not at all in the same vein as Justice Scalia’s.

The Judge’s jurisprudential approach to the law and the methodology he employs are substantially different from that of Justice Scalia. We discuss this on the Arbalest Quarrel website. We recently posted a comprehensive analysis of the Reno case in a series of articles.

We welcome you to take a look at our analysis and encourage you to take a tour of our site. The link is: www.arbalestquarrel.com.

We trust that you appreciate our concern for the continued preservation of our sacred Second Amendment. We implore you to deny Judge Merrick Garland a hearing and a vote on his confirmation. The danger his confirmation poses to our free Republic and to the preservation of the Bill of Rights our founders gave us rests in the balance.

The Arbalest Quarrel weblog recently posted a comprehensive analysis of the Reno case in a series of articles. We welcome you to take a look at our analysis and encourage you to take a tour of our site. Once again, the link is: www.arbalestquarrel.com.

We trust that you appreciate our concern for the continued preservation of our sacred Second Amendment. We implore you to deny Judge Merrick Garland a hearing and a vote on his confirmation. The danger his confirmation poses to our free Republic and to the preservation of the Bill of Rights our founders gave us rests in the balance.

Sincerely,

/s/Roger Katz

Roger J. Katz, Attorney at Law
Co-founder, Arbalest Group, LLC.

About The Arbalest Quarrel:

Arbalest Group created `The Arbalest Quarrel' website for a special purpose. That purpose is to educate the American public about recent Federal and State firearms control legislation. No other website, to our knowledge, provides as deep an analysis or as thorough an analysis. Arbalest Group offers this information free.

For more information, visit: www.arbalestquarrel.com.

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terdog
terdog
4 years ago

I believe that there are a growing number of Republicans that are changing their mind in regards to the Nomination. I wholeheartedly agree that both sides are guilty of doing this. Don’t make it right though. Why do you feel that waiting for the “next” President is the right thing to do? Let the Senate do their job. I am so tired of the gridlock. As for the less governing costing liberties, I don’t see it that way. What liberties are lost in getting an Infrastructure bill passed? Or working on Border Security? These and many other things need to… Read more »

Eric_CA
Eric_CA
4 years ago
Reply to  terdog

Hi terdog, I honestly hope the Republicans do not change their minds. I would like to see them show some conviction and hold steadfast. I don’t want them giving in to Obama because that’s never a good thing. Especially on something so important for the future direction of our country. If they don’t, and somehow Garland wins a majority in the committee and Senate, then we can all kiss our Second Amendment rights good bye. Actually, the Constitution gives the Senate the full and complete power to withhold hearings. It has nothing to do with being right (correct) or wrong.… Read more »

terdog
terdog
4 years ago

Eric and Tom. . . Gentlemen, my point of Governing was in reference to the House and Senate. The way that the Republicans have become obstructionists is just flat out wrong. If they are firm in their conviction, then bring him (or SOMEBODY) up for a vote.
There are enough issues that our country is facing without adding unnecessary items to the docket.

Eric_CA
Eric_CA
4 years ago
Reply to  terdog

Hi terdog, I had an inkling you were referring to the House and Senate. I stand behind my comments that the less governing the government does, the better off we are. As far as republicans being “obstructionists.” The Senate Judiciary Committee is well withing it’s rights NOT to take any action regarding Obama’s nominee Judge Merrick Garland. By the way, the Democrats (I believe it was Shumer and Biden) have done the same thing. However, this time they don’t like being on the receiving end. So being the typical hypocrites, they now whine. The republicans are being “firm in their… Read more »

Eric_CA
Eric_CA
4 years ago

There was a time when Supreme Court Justice’s role was to rule on the constitutionality of a law. The liberals have made it not about the Constitution, but about liberal personal beliefs.

The Mechanic
The Mechanic
4 years ago

Action Needed to Oppose Obama Supreme Court Nominee!

Write Your Lawmakers here: https://act.nraila.org/takeaction.aspx?AlertID=119
And here: http://action.americancommitment.org/19580/no-votes-no-hearings/
or call the congressional switchboard at (202) 224-3121 to make your voices heard.

Lee
Lee
4 years ago

Keep Garland out of the Supreme Court or we will Loose all Constitutional Rights, not just the Second. I’m just saying.

terdog
terdog
4 years ago

I am soo tired of the right WHINING about this, or ANYTHING that this POTUS does.
Heres a thought for all you Constitutional scholars… do want the founders of our great country envisioned. Find someone that both sides can live with and start doing your jobs of governing the country.

Eric_CA
Eric_CA
4 years ago
Reply to  terdog

terdog, “Governing the country”! The best government is one that interferes the least with the people. The more they govern, the more liberty one looses.

Tom C.
Tom C.
4 years ago
Reply to  terdog

I am sorry to burst your bubble, however, the supreme court does not have the job of governing. They can only make sure the constitution is being adhered to. We don’t want to be “governed” by a bunch of lawyers (judges).

abelhorn
abelhorn
4 years ago

When someone disagrees with me that we can discuss.
When someone disagrees with the Constitution that is
Anti-American and that person should never hold office.

Dave
Dave
4 years ago

Sorry chief- unfit for THE Court = unfit for ANY court

J.R. Alexander
J.R. Alexander
4 years ago

Obama’s record beginning back in Illinois as a young Senator should provide living proof to everyone of his hatred of guns and the people who own them. He has begun to stack the Supreme Court with his kind of anti-gun, anti-Second Amendment, anti-American types and now has another candidate in line to further his agenda. Judge Garland may be a fine Judge; but he is unfit, unable and I’m certain unwilling to work for the Rights of ALL Americans on the high Court. That includes the hundreds of millions of Americans like myself who are responsible gun owners and grew… Read more »