March 31, 2016

Top Second Amendment Scholars to Sen. Grassley: You’ve Been Hoodwinked by the NRA, Give Merrick Garland a Hearing and Vote

Paul Guequierre, Director of Communications, or (202) 393-6187

WASHINGTON, D.C. – With the political rhetoric surrounding the vacancy on the Supreme Court on the rise, the National Rifle Association (NRA) has once again wielded its special interest power over Senate Republicans, effectively holding the confirmation process hostage by claiming Chief Judge Merrick Garland has an anti-gun rights record. The problem is, that simply is not true. Today, a group of the nation’s top Second Amendment scholars organized by the American Constitution Society for Law and Policy, sent an open letter to Sen. Charles Grassley, chairman of the Senate Judiciary Committee and Ranking Member Patrick Leahy, debunking the NRA’s myths and calling on the Senate to fulfill its constitutional duty and give Garland a fair hearing and an up-or-down vote.

The professors note Senate Majority Leader Mitch McConnell and others have justified taking no action on Judge Garland’s nomination based on serious misrepresentations of the Senate’s constitutional obligations and a substantial distortion of Garland’s record. Senator McConnell recently stated that he “can’t imagine that a Republican majority in the United States Senate would want to confirm, in a lame duck session, a nominee opposed by the National Rifle Association.”

But the NRA is wrong. In the letter, the Second Amendment scholars point out:


·         The NRA bases its specious claims on Judge Garland’s actions in two cases that came before the D.C. Circuit during his tenure, but in neither case did he take a substantive position on the Second Amendment, the individual right to keep and bear arms, or  the Supreme Court’s landmark decision in District of Columbia v. Heller.

·         In Parker v. District of Columbia, a case challenging the D.C. handgun ban the Supreme Court ultimately found to violate the Second Amendment in Heller, Judge Garland was one of four judges—including conservative, George H.W. Bush-appointee, A. Raymond Randolph—who voted for the entire D.C. Circuit to rehear, en banc, a three-judge panel’s ruling that the ban violated the Second Amendment. Under the Federal Rules of Appellate Procedure, en banc review is called for when a panel decision conflicts with prior judicial precedent and when the case involves a “question of exceptional importance.” Parker fit both criteria.

·         Judge Garland’s vote in National Rifle Association v. Reno is misleadingly characterized as further evidence of an anti-gun position and a desire to create a national gun registry. In that case, Judge Garland joined an opinion holding that the Department of Justice acted lawfully—and did not establish any gun registry—by temporarily retaining records on background checks performed pursuant to the Brady Act. The information the Department temporarily retained—which did not include “addresses of persons approved to buy firearms, nor any information on specific weapons, nor even whether approved gun purchasers actually completed a transaction”—enabled audits designed to ensure an accurate, secure, and private background check system. The information was destroyed within six months, in keeping with the Brady Act.  When the N.R.A. appealed, the Bush Department of Justice, under John Ashcroft, defended the opinion Judge Garland joined, writing that “[t]he court of appeals’ decision is correct.”

“The political spin about the Supreme Court vacancy and Chief Judge Garland’s record is a detriment to our Constitution,” said ACS President Caroline Fredrickson. “Distortions by the NRA and other outside interest groups only further demonstrate the need for hearings on Judge Garland’s nomination to ensure there is an accurate appraisal of his record. He deserves a fair hearing and a vote. The Constitution calls for it.”

Read the full letter here.

The American Constitution Society for Law and Policy (ACS), founded in 2001 and one of the nation's leading progressive legal organizations, is a rapidly growing network of lawyers, law students, scholars, judges, policymakers and other concerned individuals dedicated to making the law a force to improve lives of all people. For more information about the organization or to locate one of the more than 200 lawyer and law student chapters in 48 states, please visit