The NRA doesn't know Merrick Garland: Column

Should the Constitution be amended to vest the power to approve Supreme Court nominees in a Washington lobbyist? While that sounds absurd, Senate Majority Leader Mitch McConnell said just last month that he "can't imagine" Republicans confirming a nominee opposed by the NRA, even after the election.

Not only has the Senate taken the unprecedented step of refusing to hold hearings for nominee Merrick Garland, senators are also blatantly outsourcing their constitutional duties to a lobbying group.

There is nothing wrong, of course, with lobbyists such as the NRA voicing their opinion about judicial nominees. That's part of their role in a democracy. Yet the Constitution declares that the Senate, not lobbyists, shall advise and consent on judges and justices.

McConnell's statement is especially disturbing because of the NRA's long record of misleading, sky-is-falling rhetoric designed to inflame voters. Back in 2008, the NRA said Sen. Barack Obama had a "10-point plan" to take away Americans' guns. While President Obama endorsed universal background checks and restrictions on the sale of military-style rifles after the shootings in Newtown, Conn., he has never proposed any law to confiscate guns.

As a supporter of the individual right to keep and bear arms, I opposed some of Obama's gun proposals, especially those on so-called assault weapons. These guns are no different than many other types of guns and are rarely used in crime. I look to the NRA to help me understand the weaknesses of proposed gun laws. These days, however, the NRA seems to prefer misrepresentations and scare tactics.

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Consider Garland's record on the Second Amendment. The NRA says Garland is "bad on guns" and "would vote to overturn" the Supreme Court's landmark decision in D.C. v. Heller, a 2008 decision that held the Second Amendment guaranteed an individual right to bear arms. Garland, however, has never written or spoken publicly about his views of the Second Amendment or the Heller case.

The NRA bases its "analysis" on two cases in which Garland was involved during his 19 years on the federal court of appeals. Both of them arose before the Supreme Court's decision in Heller — and neither of them tells us anything about Garland's views of the Second Amendment.

One of them was the Heller case itself, before the Supreme Court decided the case. After a panel of judges held that Washington's ban on handguns was unconstitutional, Garland was one of several judges voting to have the whole court weigh in. His vote tells us he wanted to have a say in the decision, not how he'd rule on the merits.

Garland might have thought that the earlier decision was wrong about the Second Amendment, or that it employed incorrect reasoning. He might even have believed the earlier decision was too weak on the Second Amendment. Indeed, Judge A. Raymond Randolph, a conservative Bush appointee, sided with Garland's position in favor of consideration by the full appeals court. Even the pro-gun Bush administration asked for the earlier decision to be reconsidered.

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The NRA says Garland supports the creation of a national registry of firearms owners because of his vote in a second case. That one involved an NRA challenge to a Justice Department audit of the background check system. Garland's court ruled against the NRA — as did the Supreme Court. The Justice Department was allowed to conduct its audit and, contrary to the NRA's overheated claims, today there is no national registry of firearms owners.

The NRA's opposition to Garland is based on fairy tales and exaggerations.

Just last month, the Supreme Court gave us new reason to be hopeful that, no matter who fills the vacant seat, Heller will not be overturned. In a decision joined by all four of the court's liberal justices, the court overturned a Massachusetts court decision upholding a ban on stun guns.

If the liberal justices were hell-bent on overturning Heller, they had an easy way to signal their intent. They could have voted to uphold the Massachusetts stun-gun ban. In an eight-member court, a 4-4 tie means the lower court decision is affirmed. Instead, the liberal justices voted to affirm Heller and the right of individuals to have weapons, such as stun guns, for self-defense.

What are Garland's views of the Second Amendment? The truth is no one knows. That's why we need the Senate to hold hearings in which senators can ask him to explain his votes and reveal to the nation his attitude about the Second Amendment.

Rather than farm out "advise and consent" to lobbying groups such as the NRA, the Senate should do its job and hold confirmation hearings — just as it has for more than a dozen other election-year nominees to the Supreme Court.

Adam Winkler, a constitutional law professor at UCLA, sits on the Board of the American Constitution Society for Law and Policy. Follow him on Twitter: @adamwinkler

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