Merrick Garland really is anti-gun

The usual gaggle of anti-gun suspects has come out of the woodwork to attack the “gun lobby” for its opposition to any action on behalf of Supreme Court nominee Merrick Garland.

Coupled with their typical protestations that their attacks on Second Amendment advocates are not attacks on the Second Amendment itself, their words are laden with half-truths and selectively culled “facts.”

But the truth is simple. Second Amendment issues have come before Garland, at least four times. He voted anti-gun every time.

In 2007, Garland was one of four judges on the District of Columbia Circuit who voted for the full court to rehear a pro-gun holding of a three-judge panel overturning Washington’s draconian gun ban in District of Columbia v. Heller.

And, yes, although Garland was joined by A. Raymond Randolph, appointed by George H.W. Bush, Garland’s vote was not merely a matter of intellectual curiosity. A comparable case, Seegars v. Gonzales, was decided differently two years earlier by an anti-gun panel of the same court. That time, Garland voted against a rehearing by the full court.

In 2000, Garland voted to allow the FBI to retain background check records well beyond the immediate destruction required by the Brady Law. I drafted the original version of the Smith Amendment that prohibits the FBI from keeping such records and taxing gun transactions that require a background check, which was in effect at the time. And, as the draftsman, I can tell you that Garland’s position was contrary to statutory law.

Finally, in 2012, Garland voted to allow prosecution (with a 30-year mandatory minimum sentence) of automatic firearms offenses without the prosecutor having to prove the accused knew the weapon was automatic, known as a showing of mens rea or a guilty mind, a requirement common in criminal law.

We know that with his anti-gun record, Garland would be the “swing vote” on the Supreme Court with respect to the 5-to-4 Heller decision and the subsequent McDonald decision that extended it. These cases recognized that the Second Amendment applied to individuals and to states.

We also know that Justices Elena Kagan, Sonia Sotomayor, Ruth Bader Ginsburg and Stephen Breyer have called for reconsideration of Heller — both from the bench in the McDonald dissent and, in the case of Kagan, in a public speech. Whatever the unanimous Supreme Court rejection of a Massachusetts court ruling that upheld the state’s stun gun ban meant, it surely does not mean that these four justices have suddenly reversed their narrow reading of the Second Amendment.

If Garland were perfectly consistent with our views on every other issue, the possibility that the Supreme Court would fundamentally rip the Second Amendment from the Constitution would be enough to justify our position.

Some argue that it is somehow either a matter of precedent or a matter of “decorum” to give Garland a hearing or at least a vote, a point made last week by the conservative former senator Tom Coburn of Oklahoma. But in an era where the court has turned itself into a super legislature, the Senate clearly has not only the right but also the obligation to block any nominee who would further that usurpation of power.

I was general counsel to the Senate Steering Committee — the Senate’s conservative Republican caucus — during the Bork nomination. I can tell you that both Robert Bork and Clarence Thomas were crucified by the Senate. With the balance of the court at stake, Senate Democrats would have done anything they thought would be helpful (and politically doable) to stop either of the nominees.

Finally, the argument has been made recently that, on the D.C. Circuit, Garland and John Roberts voted together on 85% of the 34 cases they shared. I’m not sure that conservatives are thrilled about the prospect of another “John Roberts” on the court. Setting that aside, the fact is that a substantial majority of lower court cases revolve around narrow questions of fact and law.

Because the Supreme Court largely selects its docket, the percentage is lower with them. But even with the Supreme Court, 66% of the cases were decided by a 9-0 decision in the 2013-14 term (40% in 2014-15), and only about 15% of the outcomes were 5-4 (26% in 2014-15).

Put another way: Because not all 5-4 splits are strictly ideological, one or more conservatives voted with one or more liberals in more than 85% of Supreme Court decisions in 2013-14. Yet, despite the fact that all liberal and conservative justices agree (unanimously) up to two-thirds of the time, it is the blockbuster cases where the difference between Ginsburg and Antonin Scalia matters.

So, yes, the gun lobby will continue to support the Second Amendment and oppose the Garland nomination. And, yes, Democrats in tight Senate races in pro-gun states might want to keep this in mind.

Michael Hammond, general counsel of Gun Owners of America, is the former executive director of the Senate Steering Committee.  This article first appeared in USA Today on May 1.