ARBALEST QUARREL LETTER DIRECTED TO SENATOR CHARLES GRASSLEY, CHAIRMAN OF THE SENATE JUDICIARY COMMITTEE

April 26, 2016

Re: President Obama’s Nominee for Justice of the U.S. Supreme Court, Merrick Garland

Dear Senator Grassley:

I am an attorney who specializes in Constitutional law. Together with my colleagues we publish the Arbalest Quarrel, a unique, informative website, specializing in formal analyses of State and federal firearms’ legislation and court decisions. Our articles are published throughout the Nation, in major magazines that are read by millions of people.

This is a rebuttal to an open letter, dated March 31, 2016, you received from several academicians urging you to allow a confirmation hearing and vote on Judge Merrick Garland, President Obama’s third short list nomination to the U.S. Supreme Court. We have serious misgivings as to Judge Garland’s suitability to serve as a Justice on the U.S. Supreme Court to fill the vacant seat.

The analysis of Judge Garland’s qualifications is critically important to the Bill of Rights of the U.S. Constitution, to the Second Amendment that is defined therein, and to the preservation of a free Republic.

The professors, who co-authored the letter, claim expertise on Second Amendment matters. They attempt to allay concerns over Judge Garland’s jurisprudential approach to the Second Amendment, but their comments raise questions about the Judge’s suitability to sit on the high Court.

In their defense of Judge Garland the academicians cite to two cases that have been the focus of attention. One of the cases is Parker vs. District of Columbia. Parker deals directly with the Second Amendment. The second case is National Rifle Association of America, Inc. vs. Reno. The Reno case deals tangentially with the import of the Second Amendment but definitely impacts the Second Amendment right of the people to keep and bear arms.

The authors attack NRA’s stance, asserting: “[t]he NRA claims that Judge Garland is hostile to the Second Amendment, but there is nothing in his record that supports such an attack.” An analysis of the facts proves them wrong. There is much in the cited cases that would spark debate in the U.S. Senate that Judge Garland has little regard for the fundamental right of the people to keep and bear arms. In Parker the lower District Court ruled in favor of the District of Columbia’s law that bans civilian possession of handguns. On appeal the U.S. Court of Appeals for the D.C. Circuit reversed the decision of the lower District Court. The Defendant, District of Columbia, requested a rehearing of the adverse decision, en banc. Judge Garland voted in favor of an en banc hearing of the case.

The authors of the March 31 letter argue that Judge Garland’s vote tells us nothing about his position on the Second Amendment. They assert: “[i]t is well established that such procedural votes say nothing about a judge’s views on the substance of the case, or how he or she would have voted on the merits. Yet, Judge Garland’s critics assert that his vote for en banc review “proves” his hostility to the Second Amendment.”

From a legal perspective the assertion is correct. But, from a logical standpoint Judge Garland’s vote for an en banc review of the Parker case reveals the essence of Garland’s lack of regard for the Second Amendment. An en banc review of Parker means the full complement of Judges – all ten – could conceivably reverse the decision of the three Judge panel that ruled in favor of the Plaintiff handgun owners, against the District of Columbia.

Failure of the Court to review the case en banc keeps the decision, against the District of Columbia, intact. Judge Garland’s vote in the Parker case clearly illustrates a position that, if not overtly “hostile” to the Second Amendment, is one certainly inconsistent with the import and purport of it; for, if Judge Garland were a proponent of the Second Amendment, his vote for an en banc review of the case would be strategically senseless.

Through an en banc hearing there would exist a real possibility that the full complement of Judges would reverse the original ruling of the three-member panel. Obviously, Judge Garland was hoping to overturn the decision of the three Judge panel, realizing there was much to be gained and nothing to lose were the full contingency of Judges empaneled to rehear the case.

Only three U.S. Court of Appeals Judges for the D.C. Circuit voted in favor of an en banc hearing in Parker: Randolph, Tatel, and Garland. Of note: two of the three Judges, Tatel and Garland, decided the Reno case, ruling in favor of the Attorney General, Janet Reno, against NRA. The decision, however, wasn’t unanimous. Judge Sentelle disagreed with the ruling and did so in a strong dissenting opinion.

Judge Tatel wrote the majority opinion in Reno. Judge Garland joined Tatel. Garland did not write his own concurring opinion. That point is notable. It means Judge Garland agreed not only with the erroneous judgment but with Judge Tatel’s faulty reasoning.

Yet, the authors of the March 31 letter do not address the reasoning of the Court’s majority in Reno. They don’t present formal argument in support of the majority opinion. They simply make statements, and the statements are misguided and meritless. The legal scholars assert the decision of the majority was correct because Attorney General, John Ashcroft, “defended the opinion,” saying, “[t]he court of appeals’ decision is correct.” But that tells us nothing illuminating. It merely begs the central question at issue: is the decision correct?

The legal scholars also assert the decision of the majority was correct because the high Court denied NRA’s writ of certiorari. But, the authors of the letter know full well that no party may impose on the high Court as a matter of right. The granting of a writ of certiorari is discretionary and the Court will take up a case when it is consistent with the interests of a majority of the Justices at that particular time to do so, regardless of the merits of a case. The interests of the parties need not and often do not factor in the equation.

But, there is another problem with the legal scholars’ pronouncements. Concerning Parker, they assert, “[a]ny argument that a purely procedural vote reflecting no substantive judgment on the merits of the underlying case is proof that Judge Garland would vote to overturn Heller is specious and dishonest, and unworthy of acceptance by the Committee or the Senate as a whole.”

The point of the remark is that no one can reasonably discern Judge Garland’s views on the Second Amendment on the basis of a purely procedural vote. But, then, concerning Reno, these same scholars assert, inconsistently, that the failure of the U.S. Supreme Court to grant review means, “[t]he Supreme Court agreed [with the decision] and declined to hear the N.R.A.’s appeal.”

Where lies the difference between the procedural vote cast by the U.S. Supreme Court Justices denying the writ in Reno, and the procedural vote cast by the full complement of U.S. Court of Appeals Judges for the D.C. Circuit, denying an en banc hearing in Parker?  If these legal scholars are telling the Senate that no inference can be drawn regarding Judge Garland’s Second Amendment stance in Parker, what is their legal or logical rationale for drawing an inference regarding a U.S. Supreme Court stance on the Second Amendment in Reno? The professors do not explain the discrepancy in their logic.

The authors of the letter suggest the Senate should accept on faith that Judge Garland’s position on the Second Amendment is – if one must speculate – indeterminate. We disagree. His philosophy on the Second Amendment, on the basis of an analysis of Parker and Reno, is clear. It is one not supportive of a strong Second Amendment. It is one not at all in the same vein as Justice Scalia’s.

The Judge’s jurisprudential approach to the law and the methodology he employs are substantially different from that of Justice Scalia. We discuss this on the Arbalest Quarrel website. We recently posted a comprehensive analysis of the Reno case in a series of articles.

We welcome you to take a look at our analysis and encourage you to take a tour of our site. The link is: www.arbalestquarrel.com.

We trust that you appreciate our concern for the continued preservation of our sacred Second Amendment. We implore you to deny Judge Merrick Garland a hearing and a vote on his confirmation. The danger his confirmation poses to our free Republic and to the preservation of the Bill of Rights our founders gave us rests in the balance.

The Arbalest Quarrel weblog recently posted a comprehensive analysis of the Reno case in a series of articles. We welcome you to take a look at our analysis and encourage you to take a tour of our site. Once again, the link is: www.arbalestquarrel.com.

We trust that you appreciate our concern for the continued preservation of our sacred Second Amendment. We implore you to deny Judge Merrick Garland a hearing and a vote on his confirmation. The danger his confirmation poses to our free Republic and to the preservation of the Bill of Rights our founders gave us rests in the balance.

Sincerely,

/s/Roger Katz

Roger J. Katz, Attorney at Law
Co-founder, Arbalest Group, LLC.