By Roger J. Katz, Attoney at Law and Stephen L. D’Andrilli
New York, NY -(Ammoland.com)- RECAP: In the last few segments of this multi-series article we have provided you with a deep analysis of the case National Rifle Association of America, Inc. vs. Reno, 216 F.3d 122, 2000 U.S. App. LEXIS 15906, 342 U.S. App. D.C. 231 (D.C. Cir. 2000).
A thorough analysis of the case provides the U.S. Senate and the American people with a detailed look into the mind of Judge Merrick Garland, providing the U.S. Senate and the American public with a clear account of Judge Garland’s view of the Second Amendment.
A deep analysis of the Reno case demonstrates Judge Garland’s lack of sympathy for and lack of deference to the Second Amendment. This conclusion is clear, categorical, and irrefutable. Importantly, an analysis of the Reno case also highlight’s flaws in the Judge’s reasoning as he obtains the result he wants through obvious intentional misapplication of the law.
The case is, then, a harbinger of things to come. A comprehensive analysis of the Reno case illustrates, for both the U.S. Senate and the American public, what they may expect of U.S. Court of Appeals Judge for the District of Columbia Circuit, Merrick Garland, were he to step into Justice Antonin Scalia’s shoes, becoming the newest member of the smallest and certainly one of the most elite Government institutions in America, as Associate Justice of the U.S. Supreme Court.
The American people can expect that, at some point, were Justice Garland to serve on the U.S. Supreme Court, the decisions in District of Columbia vs. Heller, 554 U.S. 570; 128 S. Ct. 2783; 171 L. Ed. 2d 637; 2008 U.S. LEXIS 5268 (2008) and McDonald vs. City of Chicago, 561 U.S. 742; 130 S. Ct. 3020; 177 L. Ed. 2d 894; 2010 U.S. LEXIS 5523 (2010) would be systematically eroded and ultimately overturned, as Justice Garland would join the liberal wing of the Court – a group of Justices that dissented from the decisions in both cases. As the ninth Justice on the high Court, Justice Garland would constitute the fifth critical vote of the liberal wing, giving the liberal wing a decisive majority.
Had Justice Garland served on the high Court in lieu of Justice Scalia at the time the Heller and McDonald case were decided, the outcome of those two seminal Second Amendment cases would have been decidedly and decisively different.
President Obama intends that Justice Garland shall serve on the high Court and if Obama’s nominee succeeds to the high Court, Obama’s socialist agenda will be secured and assured for generations of Americans to come.
The argument given that Judge Garland is a “centrist” means nothing in a vacuum, and that is how it is used. In fact, if anything, the expression as employed, as a one-word descriptor for Judge Garland, is patently misleading and is meant to misguide the U.S. Senate and the American people. Indeed, if, in the worst of all possible worlds, Hillary Clinton were to become President of the United States, she could renominate and probably would renominate Judge Garland to the high Court if President Obama is unable to persuade the U.S. Senate to hold a hearing on Garland’s nomination. Hillary Clinton would be very pleased with Judge Garland, sitting as Justice Garland on the high Court.
It is childish and disingenuous of the mainstream media, on behalf of Obama, to threaten the U.S. Senate by suggesting that, if the Senate fails to hold a hearing and fails to confirm Judge Garland as U.S. Supreme Court Justice Merrick Garland, a President, such as Hillary Clinton, will nominate a person who is “more” liberal.
Keep uppermost in mind: Judge Garland was always on Obama’s short list of nominees. Judge Garland is, then, a Judge in the same vein as Justices Sotomayor and Kagan. Judge Garland shares the same legal and social philosophies of Justices Sotomayor and Kagan. Were that not so, President Obama would not have nominated Judge Garland to sit on the high Court. Never forget that!
Judge Garland’s Antipathy Toward The Second Amendment Is On Full And Extravagant Display In The Reno Case.
The Reno case deals with an arcane and narrow issue of law: the meaning of the words ‘destroy all records’ as set forth in the Brady Handgun Violence Prevention Act of 1993, as codified in the U.S. Code in 18 U.S.C. § 922(t)(2)(c). The Brady Act is part of, and subsumed in the vaster Gun Control Act of 1968. As the Gun Control Act of 1968 becomes ever broader, it whittles away at the import, purport and, indeed, singular power of the Second Amendment. Eventually, antigun Congressional Legislators intend, through enactment of a continuous stream of antigun Statutes, to undermine the Second Amendment to the point of de facto repeal of it. So, don’t be misled: the Reno case has a major impact on the Second Amendment despite or, perhaps, in spite of the seeming arcane, narrow legal issue that the Court dealt with.
Congress Prohibits The Creation Of Either A Federal Or State Gun Registry, But Judge Garland Says That Creation Of A Gun Registry Is Acceptable
The Brady Act requires each and every federally licensed firearms dealer to undertake an instant criminal background check of all prospective purchasers of guns and ammunition. The Justice Department, the antigun enforcement arm of the federal Government is charged with creating the rules that implement the Brady Act. So, whenever an individual seeks to purchase a firearm or ammunition for a firearm, the firearms’ dealer performs a criminal background check by tapping into the Justice Department’s NICS database. Once the licensed gun dealer completes “the call” and finds the prospective buyer to be under no disability, the firearms transaction and/or ammunition transaction can be completed. But, what becomes of the records of the transaction?
That is the nub of the Reno case; for, Congress says that the records of the transaction are to be destroyed.
The United States Code, 18 U.S.C. § 922(t)(2)(c)(C), says, “destroy all records of the system with respect to the call (other than the identifying number and the date the number was assigned) and all records of the system relating to the person or the transfer.” Why? Congress says the NICS records must be destroyed so as to prevent federal government or any State government from creating a gun registry. Congress said in no uncertain terms, “no department, agency, officer, or employee of the United States may require that any record or portion thereof generated by the system [NICS] established under this section be recorded at or transferred to a facility owned, managed, or controlled by the United States or any State or political subdivision thereof.” Pub. L. No. 103-159, § 103(i), 107 Stat. at 1542.
Did Janet Reno’s Justice Department comply with these clear Statutory prohibitions? In a word, “no!” Under the rules the Justice Department promulgated, as codified in the Code of Federal Regulations, 28 C.F.R. § 25.9(b), the Department establishes and maintains an “Audit Log” of all firearms’ and ammunition transactions. It is in the very creation of an “Audit Log” that the Justice Department either creates or sets in motion the steps necessary for implementation of a backdoor gun registry.
Federal Circuit Court of Appeals Judge Tatel wrote the opinion for the majority. Judge Garland agreed with both the decision and the reasoning of the Court and, so, adopted the opinion as his own, as if he had written the opinion himself. In the opinion the Judges go so far as to admit that the Justice Department’s “Audit Log” could indeed function as a gun registration system, but, then, upon that admission, the Judges attempt, unsuccessfully, to dismiss the import of it. The Judges say: “It does not follow, of course, that the Audit Log could never function as a firearm registry. But the Log’s deficiencies as a system for registering firearms make, it unlikely that it would be used for that purpose.”
This is an odd remark. For the Judges Tatel and Garland are at once admitting that the Justice Department has created a rule amounting to a clear an intrusion upon on the First Branch of Government, Congress, and an unmistakable transgression of the Separation of Powers Doctrine, but attempt to backpedal the admission by saying that the “Audit Log” is a poor example of a gun registration scheme.
Whether a fine example of a registration scheme or not, the “Audit Log” does function as a gun registration scheme or can be used as such.
And that is enough to find 28 C.F.R. § 25.9(b) illegal on its face. For, in enacting the Brady Act, Congress made clear that neither State governments, nor the Second Branch of the Federal Government – the Executive Branch – is permitted to create a gun registry or to create something that, if not intended to be a gun registry scheme, can certainly function as one. The Justice Department has done just that. And, Judges Tatel and Garland have stamped their judicial imprimatur upon it.
Judges Tatel and Garland are essentially saying that because the Audit Log has deficiencies as a firearm registry, we don’t have to worry that it may one day become one. But, if we go that far, are not Judges Garland and Tatel saying that the Justice Department could certainly remove the deficiencies and create a first-class gun registry?
In the next article, Part 5 of this multi-part series, we take a close look at the meaning of the phrase, “destroy all records of the system,” in the context of the Statute.
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