What Does Merrick Garland Think About The Second Amendment?

It went almost unnoticed amidst the chaos at the Capitol on Wednesday afternoon, but the Associated Press reported that Joe Biden has settled on D.C. Circuit Court of Appeals Judge Merrick Garland as his pick for Attorney General. While the socialist wing of the Democrat Party is going to complain about Biden once again picking a “moderate” for a cabinet position, when it comes to the right to keep and bear arms Garland is anything but middle-of-the-road.

Back in 2016, when Barack Obama nominated Garland to replace Antonin Scalia on the Supreme Court, Carrie Severino of the Justice Crisis Network pointed out Garland’s skepticism towards the right to keep and bear arms starting with the Heller case.

Heller ultimately led to Washington, D.C. ban on handguns being struck down by SCOTUS as an unconstitutional infringement of the Second Amendment. Garland was one of the judges who heard the case at the appellate level, and in his opinion, the appellate court that had ruled the District’s ban was unconstitutional needed to take another look at the case.

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 one’s 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, there’s a good chance that the Supreme Court wouldn’t have had a chance to protect the individual right to bear arms for several more years.
Severino went on to detail that earlier case involving Garland, which involved a issued back in the Clinton administration.
Garland voted with Tatel to uphold an illegal Clinton-era regulation that created an improvised gun registration requirement. Congress prohibited federal gun registration mandates back in 1968, but as Kopel explained, the Clinton Administration had been “retaining for six months the records of lawful gun buyers from the National Instant Check System.” By storing these records, the federal government was creating an informal gun registry that violated the 1968 law. Worse still, the Clinton program even violated the 1994 law that had created the NICS system in the first place. Congress directly forbade the government from retaining background check records for law abiding citizens.
So Garland was so deferential to executive authority that he allowed the Clinton administration to ignore the express directions by Congress not to use the NICS records to create an ad-hoc gun registration scheme. It’s not a stretch to assume that he would give similarly broad leeway to the DOJ and ATF to harness the power of the regulatory state in restricting the rights of legal gun owners.
Merrick Garland doesn’t have an extensive record on the Second Amendment, but based on the cases he’s been involved in, the right to keep and bear arms appears to be of secondary concern to government power and authority. He may not have been the most vociferously anti-gun official on Biden’s short list, but there are still plenty of reasons for concern.
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