Judge Garland Does Not Adhere To The Methodology That Justice Antonin Scalia Employed

An Analysis Of The Case NRA Vs. Reno
By Roger J. Katz, Attoney at Law and Stephen L. D’Andrilli

The Scalia Chair
The Scalia Chair
Arbalest Quarrel
Arbalest Quarrel

New York, NY  -(Ammoland.com)-  U.S. Supreme Court Justice Antonin Scalia always adhered to the principle that, when interpreting a Statute, a Judge should look first and foremost to the language of the Statute itself and not attempt to go beyond the language of a Statute in order to decipher its meaning or to force a particular meaning onto a Statute.

This is the principle referred to as textualism,’ and Justice Scalia was a fervent proponent of it.

He was, as well, instrumental in its development during his own tenure as Judge on the United States Court of Appeals for the District of Columbia Circuit. He further developed and refined its use when he was confirmed as a U.S. Supreme Court Justice. Other Justices began to employ it in their own reasoning.

Justice Scalia saw, in the utilization of ‘textualism,’ a tool that guards against a Judge inadvertently, or, for that matter, deliberately thrusting that Judge’s personal judicial predilections on a case in order to force through a conclusion and a decision that a Judge wants, rather than a conclusion and decision that is founded on good law and upon sound logic.

The judicial theory of ‘textualism’ means that, when a Judge seeks to discern the meaning of a Statute, the Judge looks to what the Statute actually says. That is to say, one looks to the “plain meaning” of a Statute. One should not and need not go to extraneous sources for information on what a Statute might mean. This leads to embellishment and is an anathema to sound legal reasoning.

During his tenure as a United States Supreme Court Justice, Justice Scalia had a tremendous impact, not only on the decisions handed down in numerous U.S. Supreme Court cases, but on the very way in suggesting how Justices ought to look at and, in fact, have looked at cases – that is to say, the manner in which Justices ought to apply sound legal and logical reasoning to a case – what a Justice should do when deciding a case and, just as importantly, what a Justice should avoid doing when deciding a case.

The Reno case would have been decided much differently had Justice Scalia, sitting as Judge Scalia, on the United States Court of Appeals for the District of Columbia Circuit, actually heard the case. Justice Scalia would have taken Judge Garland to task for looking beyond the plain meaning of 18 U.S.C. § 922(t)(2)(c)(C). For, having done so, Judges Tatel and Garland came to the wrong decision in the case. And, they did, so because they took into account the Legislative history of the Statute in question, in order to decipher the meaning of the Statute, when it was unnecessary to do so. They did so at all because they wished to come to the decision they did. This amounts to intellectual dishonesty, and, indeed, to legal and logical heresy.

Judges Tatel and Garland did so, clearly enough, not to derive the correct decision, but to justify an erroneous decision that might still come across as plausible. In so doing, they relinquished judicial honesty in order to promote their own brand of social philosophy – one that is detrimental to the sanctity of the Second Amendment of the Bill of Rights.

The Chevron Case

The decision of the Court’s majority – Judges Tatel and Garland – in the Reno case, is also grounded on the U.S. Supreme Court case, Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 81 L. Ed. 2d 694, 104 S. Ct. 2778 (1984). Judges Tatel and Garland pointed out, in the Reno case, that, because NRA had challenged the legality of a federal Statute, administered by a government agency, the Court must employ the two-part Chevron test. The first part of the test requires a Court to determine whether Congress has directly spoken to the precise issue. In this case, the issue is whether the meaning of the phrase, “destroy all records” of a gun transaction is clear and unambiguous. If so, that ends the matter. If not, then a Court must go to the second part of the Chevron test and ask whether the agency’s answer is based on a permissible construction of the statute. In the instant case the Justice Department has promulgated a rule creating an “Audit Log,” allowing for retention of information concerning a gun transaction within a six-month period.

Judges Tatel and Garland decided that Congress did not intend that gun transaction records must be destroyed immediately because, as the Court said, Congress would have drafted Brady Act legislation to include the word, ‘immediately.’ But, this really begs the question at issue. And, by looking at Legislative history – when there was no sound legal or logical reason to do so – Judges Tatel and Garland provided, to their minds at least, a plausible argument in support of the result they wanted, namely that the Justice Department “Audit Log” and “retention rule” were consistent with the intent of Congress when Congress enacted the Brady Act, when law and logic dictate another result entirely: that the “Audit Log” and “retention rule” are patently illegal.

Had Judges Tatel and Garland employed the sound jurisprudential methodology developed by Justice Scalia, the Judges would have been compelled to find in favor of NRA, reversing the decision of the United States District Court for the District of Columbia.

Merrick Garland with pal Obama
Merrick Garland with pal Obama

In that event the decision in favor of NRA would have been unanimous. All three Federal Circuit Court of Appeals Judges, Tatel, Sentelle, and Garland would be in full agreement. Judges Tatel and Garland might not have liked the result deriving from sound legal and logical reasoning, but, at least, they would have been intellectually honest about it, and their judicial integrity would have been intact.

That Judges Tatel and Garland allowed personal sentiment to override judicial integrity and intellectual honesty – even going so far as to canvass Congressional history to buttress a horribly wrong decision – now allows the Justice Department to maintain an illegal “Audit Log,” of gun transaction records, that will in turn lend itself to the creation of an illicit federal gun registry if such does not already exist.

The decision of Judges Tatel and Garland tells us that the Janet Reno’s rules for implementing the NICS criminal background check system is all perfectly consistent with Congressional intent in enacting the Brady Act when Justice Department’s actions amount to illegal usurpation of the power and authority of Congress, the First Branch of Government. The duties of the Second Branch of Government, the Executive, of which the Justice Department is a part, is limited to executing the laws that Congress creates – not creating law of its own accord. The Justice Department has done so, converting the Brady Act’s NICS instant criminal background check system into an illegal federal gun registry or, at least – in the rules that the Justice Department has promulgated – certainly paving the way for creation of an illicit federal gun registry. 


Judge Tatel has not been nominated by President Obama to replace Justice Scalia on the high Court; and, so, the damage that Judge Tatel might inflict on the Bill of Rights, although certainly harmful to the preservation of the Second Amendment, is probably not catastrophic. But, Judge Garland has been nominated by Obama to serve as Justice Scalia’s replacement.

Judge Garland, sitting on the high Court, as Justice Garland, will not be in the strongest possible position merely to subvert Justice Scalia’s decisional history; Judge Garland will also be in a position to subvert Justice Scalia’s jurisprudential philosophy that also includes Justice Scalia’s legisprudential approach to statutory construction – all of which lend to the ultimate demise of the Second Amendment and much of the rest of the Bill of Rights along with it.

Understandably, President Barack Obama would like to keep these facts well hidden.

Click Here to Read Part One of the Series on Judge Garland

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How long shall we wait……. one good american is needed….


garland is a left-wing lib LIMP noodle. He is about as much a CONSTITUTION LAWYER as obozo the clown in the white hut.