JUDGE MERRICK GARLAND DOES NOT ADHERE TO THE METHODOLOGY THAT JUSTICE ANTONIN SCALIA EMPLOYED WHEN DECIDING CASES.

JUDGE MERRICK GARLAND DOES NOT ADHERE TO THE METHODOLOGY THAT JUSTICE ANTONIN SCALIA EMPLOYED WHEN DECIDING CASES.

AN ANALYSIS OF THE CASE NRA VERSUS JANET RENO

PART 7

U.S. Supreme Court Justice Antonin Scalia always adhered to the principle that, when interpreting a Statute, a Judge should look first and foremost to the language of the Statute itself and not attempt to go beyond the language of a Statute in order to decipher its meaning or to force a particular meaning onto a Statute. This is the principle referred to as ‘textualism,’and Justice Scalia was a fervent proponent of it. He was, as well, instrumental in its development during his own tenure as Judge on the United States Court of Appeals for the District of Columbia Circuit. He further developed and refined its use when he was nominated by President Ronald Reagan to serve as an Associate Justice on the U.S. Supreme Court and confirmed by the United States Senate in 1986. He served brilliantly on the Court until his death on February 13, 2016. Other Justices began to employ the methodology of 'textualism' in their own reasoning.Justice Scalia saw, in the utilization of ‘textualism,’ a tool that guards against a Judge inadvertently, or, for that matter, deliberately thrusting that Judge’s personal judicial predilections on a case in order to force through a conclusion and a decision that a Judge wants, rather than a conclusion and decision that is founded on good law and upon sound logic. The judicial theory of ‘textualism’ means that, when a Judge seeks to discern the meaning of a Statute, the Judge looks to what the Statute actually says. That is to say, one looks to the “plain meaning” of a Statute. Textualism also requires a Judge to look only to the plain meaning of a Statute as enacted. One should not and need not go to extraneous sources for information on what a Statute might mean. To do so leads to embellishment and is an anathema to sound legal reasoning.During his tenure as a United States Supreme Court Justice, Justice Scalia had a tremendous impact, not only on the decisions handed down in numerous U.S. Supreme Court cases, but on suggesting how Justices ought to look at cases – that is to say -- the manner in which Justices ought to tackle a case -- applying sound legal and logical reasoning to a case so as to come to a sound legal and logical decision and, just as importantly, what a Justice should avoid doing when deciding a case. The methodology of textualism became incorporated in the legal reasoning of many of the Justices.The Reno case is a textbook example of poor legal and logical reasoning by the Court's majority and aptly illustrates the dangers a Jurist runs into when that Jurist goes beyond the plain meaning of a Statute as enacted. The Reno case would have been decided much differently had Justice Scalia, sitting as Judge Scalia on the United States Court of Appeals for the District of Columbia Circuit, actually heard the case. Justice Scalia would have undoubtedly taken Judges Tatel and Garland to task for looking beyond the plain meaning of 18 U.S.C. § 922(t)(2)(c)(C). For having done so, Judges Tatel and Garland came to the wrong decision in the case. And, they did, so because they looked deep into and took into account the Legislative history of the Statute in question, in order, as they argue, to decipher the meaning of the Statute. They did this when it was unnecessary to do so. They did so because they wished to come to the decision they did. This amounts to intellectual dishonesty, and, indeed, to legal and logical heresy.Judges Tatel and Garland did so, clearly enough, not to derive the correct decision, but, rather, to justify an erroneous decision that might come across as a plausibly correct one. In so doing, they relinquished judicial honesty in order to promote their own brand of legal philosophy and ideology – one that is detrimental to the sanctity of the Second Amendment of the Bill of Rights.

THE CHEVRON CASE

The decision of the Court’s majority – Judges Tatel and Garland – in the Reno case, is also grounded on a misapplication of the U.S. Supreme Court case, Chevron U.S.A. Inc. vs. Natural Resources Defense Council, Inc., 467 U.S. 837, 81 L. Ed. 2d 694, 104 S. Ct. 2778 (1984). Judges Tatel and Garland pointed out that, because NRA had challenged the legality of a federal Statute, administered by a government agency, the Court must employ the two-part Chevron test. That is true enough, and the first part of the test requires a Court to determine whether Congress has directly spoken to the precise issue. In this case, the precise issue is whether the meaning of the phrase, “destroy all records,”  of a gun transaction, as the phrase  “destroy all records,”  appears in the Statute subsection, 18 U.S.C. § 922(t)(2)(c)(C),  is clear and unambiguous. If so, that ends the matter. If not, then a Court must go to the second part of the Chevron test and ask whether the agency’s answer -- as exemplified in the rules that an agency promulgates to effectuate the intent of Congress as expressed in a Congressional enactment -- is based on a permissible construction of the statute. In the instant case the Justice Department has promulgated a rule creating an “audit log,” allowing for retention of information concerning a gun transaction within a six-month period.Judges Tatel and Garland decided, erroneously, that Congress did not intend that gun transaction records must be destroyed immediately because, as the Court said, Congress would have drafted the Brady Act legislation to include the word, ‘immediately.’ But, this really begs the question at issue: whether the Statute in question, 18 U.S.C. § 922(t)(2)(c), and, specifically, subsection, 18 U.S.C. § 922(t)(2)(c)(C), is inherently, intrinsically ambiguous because the word, 'immediately,' does not happen to follow the word, 'records,' in the phrase, 'destroy all records.' But, the Court's majority inferred that 18 U.S.C. § 922(t)(2)(c)(C) is inherently ambiguous because the Court's majority, Judges Tatel and Garland, decided that it must look to Legislative history to resolve the presumed ambiguity – when there was no sound legal or logical reason to do so. Having found, in Legislative history, that the House version of 18 U.S.C. § 922(t)(2)(c)(C) contained the word, 'immediately,' but that the Statutory subsection, as redrafted in the Senate version, and as ultimately enacted, did not include the word, 'immediately,' the Court's majority inferred that the omission of the word, 'immediately,' in the final version of the Brady Act, as enacted, was ambiguous as to retention of NICS records.Is this to say that the Statutory subsection as enacted is inherently ambiguous? That is unlikely. For, if that were true, one would have to surmise that Congress had decided, for some bizarre reason, to craft a Statute that Congress knew would be ambiguous. What kind of guidance would that have provided for the Second Branch of Government -- the Executive Branch -- the Branch of Government charged with executing the laws of Congress, under Article 2, Section 3 of the U.S. Constitution. Article 2, Section 3 of the U.S. Constitution  requires that the Executive "shall take care that the laws be faithfully executed." More likely, Congress realized that inclusion of a qualifier, in the phrase, "destroy all records," is unnecessary because inclusion  of the adverb, 'immediately,' to the phrase, 'destroy all records,' simply creates redundancy. Moreover, had Judges Tatel and Garland not bothered to look at the Legislative history of the Statute, 18 U.S.C. § 922(t)(2)(c), they would not have come across the House version of the Statute in the first place. The Judges simply used a House version of a bill -- that was never enacted -- to argue, after the fact, that the version of the Statute as enacted must be ambiguous, when it never was ambiguous.In looking improperly to Legislative history, Judges Tatel and Garland provided, to their minds at least, a plausible argument to buttress the result they wanted, namely that the Justice Department “audit log” and “retention rule” were consistent with the intent of Congress when Congress enacted the Brady Act, notwithstanding that law and logic dictate another result entirely: that the “audit log” and “retention rule” -- for individuals who are under no disability and, therefore,  are lawfully permitted to possess firearms and ammunition -- is not authorized and is patently illegal. Had Judges Tatel and Garland employed the sound jurisprudential methodology developed by Justice Scalia, textualism, they would have avoided the tortuous path that led them to the wrong decision. The Judges would have been compelled to find in favor of NRA, reversing the decision of the United States District Court for the District of Columbia. In that event the decision in favor of NRA would have been unanimous. All three Federal Circuit Court of Appeals Judges, Tatel, Sentelle, and Garland would be in full agreement. Judges Tatel and Garland might not have liked the result deriving from sound legal and logical reasoning, but they would have been intellectually honest about it and their judicial integrity would have be intact. The Separation of Powers Doctrine would have been adhered to, and the American People would not be faced with the prospect of an illegal Government intrusion into the exercise of the fundamental right of the people to keep and bear arms. It is not the Government's business to keep records on law-abiding citizens lawful firearms and ammunition transactions, and it was never the intent of Congress to give the federal Government authorization under the Brady Act, or under any other federal Act, for that matter, to keep tabs on firearms and ammunition that law-abiding American citizens own and possess; nor does the Brady Act, or any other Act of Congress authorize Government to keep records on the mere fact that a firearms' or ammunition transaction has taken place.That Judges Tatel and Garland allowed personal sentiment to override judicial integrity and intellectual honesty – even going so far as to canvass Congressional history to buttress a horribly wrong decision – now allows the Justice Department to maintain an illegal “audit log,” of gun transaction records, that lends itself to the creation of an illicit federal gun registry if such does not already exist. Having found 18 U.S.C. § 922(t)(2)(c)(C) to be inherently ambiguous, the Judges compounded their error by proceeding to Step 2 of the Chevron test which, "affords substantial deference to the agency's interpretation of statutory language." That may be, but it need not be, and would not be had Judges Tatel and Garland refrained from proceeding to Step 2 of the Chevron case in the first instance.The decision of Judges Tatel and Garland tells us that the Janet Reno’s rules for implementing the NICS criminal background check system is all perfectly consistent with Congressional intent in having enacted the Brady Act when the Justice Department’s actions amount to illegal usurpation of the power and authority of Congress, the First Branch of Government. The duties of the Second Branch of Government, the Executive, of which the Justice Department is a part, is limited to executing the laws that Congress creates – not creating law of its own accord. The Justice Department has done so, converting the Brady Act’s NICS instant criminal background check system into an illegal federal gun registry or, at least – in the rules that the Justice Department has promulgated – certainly paving the way for creation of an illicit federal gun registry. And, the Court's erroneous ruling in Reno gives the Justice Department's illicit actions legitimacy.In finding ambiguity in a Statute when no ambiguity exists Judges Tatel and Garland open up a door to grandiose interpretation of Congressional enactments on the part of the Executive Branch. So, if the President -- which includes the entirety of the Executive Branch departments, agencies, and bureaus under the President's control -- takes exception to restrictions in Congressional enactments, the Executive can simply ignore the restrictions and go its own way. This is what happened with the instant criminal background check as applied to individuals who seek to acquire firearms or ammunition. Judges Tatel and Garland have allowed for the creation of a hidden federal gun and ammunition registry, irrespective of and, in fact, in clear defiance of Congressional intent. The decision of the majority in the Reno case is an example, as well, of heinous Judicial activism and is an omen of things to come if Judge Garland succeeds to a seat on the U.S. Supreme Court -- giving the liberal wing of the high Court a critical fifth vote, a clear majority, and an unparalleled opportunity to pursue a Socialist agenda, inconsistent with our core values as exemplified by and preserved in our Nation's Bill of Rights. The liberal wing the high Court will, hereafter, be able to operate unimpeded by the conservative wing of the high Court.

CONCLUSION

Judge Tatel has not been nominated by President Obama to replace Justice Scalia; and, so, the damage that he might inflict on the Bill of Rights, although certainly harmful to the preservation of the Second Amendment is probably not catastrophic. But, Judge Garland has been nominated by Obama to serve as Justice Scalia’s replacement.Judge Garland, sitting on the high Court, as Justice Garland, will be in the strongest possible position not merely to subvert Justice Scalia’s decisional history; Judge Garland will be in a position to subvert Justice Scalia’s jurisprudential philosophy that also includes Justice Scalia’s legisprudential approach to statutory construction – all of which lend to the ultimate demise of the Second Amendment and much of the rest of the Bill of Rights along with it. Understandably, President Barack Obama would like to keep these facts well hidden.[separator type="medium" style="normal" align="left"margin-bottom="25" margin_top="5"] Copyright © 2015 Roger J Katz (Towne Criour), Stephen L. D’Andrilli (Publius) All Rights Reserved.

JUDGE GARLAND’S REASONING IS MARKED BY UNSOUND LEGAL REASONING AND FAULTY LOGIC

JUDGE GARLAND’S REASONING IS MARKED BY UNSOUND LEGAL REASONING AND FAULTY LOGIC

AN ANALYSIS OF THE CASE NRA VERSUS. JANET RENO

PART 6

MISUSE OF LEGISLATIVE HISTORY WHEN ATTEMPTING TO DECIPHER THE PLAIN MEANING OF A STATUTE

We have discussed a major flaw in the reasoning of Judges Tatel and Garland in Part 5 of this multi-series article. There is a second, equally serious flaw in the reasoning of Judge Tatel and Judge Garland, when they ruled in favor of Janet Reno, against NRA and, therefore, against the right of the people to keep and bear arms, in the Reno case. The Judges relied on Legislative history to buttress the conclusion they sought, namely, that the Justice Department was not required to destroy NICS records immediately. In the misuse of Legislative history, the Judges committed a cardinal fallacy of logic. They assumed what they needed to prove, namely that failure of Congress to add the word, ‘immediately,’ before the word ‘destroy,’ in 18 U.S.C. § 922(t)(2)(c)(C), means that Janet Reno could unilaterally decide to keep NICS records for 6 months, or 6 years, or for any length of time – even indefinitely, for that matter – because no specific time limit, relating to the destruction of the NICS records, is set forth in the Statute. The idea manifests as a ludicrous idea assumed to be true rather than a conclusion to be derived. And the assumption is predicated on a specific piece of legislative history. They said, “Our conclusion that section 922(t)(2)(C) does not unambiguously require immediate destruction of NICS records finds support in the Act's legislative history. As reported to the House by the Judiciary Committee, the Brady bill contained no destruction requirement at all. See H.R. Rep. No. 103-344 (1993), reprinted in 1993 U.S.C.C.A.N. 1984. The obligation to destroy NICS records was added during floor debate. As passed by the House, the bill stated that the system shall ‘immediately destroy all records’ of allowed transactions. See 139 Cong. Rec. H9098, 9123, 9144 (daily ed. Nov. 10, 1993). The Conference Committee, however, adopted the Senate's version of the destruction requirement, which did not contain ‘immediately.’ Compare 139 Cong. Rec. H9123 (daily ed. Nov. 10, 1993) (House version), with 139 Cong. Rec. S16506 (daily ed. Nov. 19, 1993) (Senate version). It was this version that both houses approved and the President signed.” Judges Tatel and Garland presume that, because inclusion of the word, ‘immediately,’ appeared in the House version of the Bill but not in the final Senate version, the Justice Department could maintain records for some unspecified period of time. This is faulty logical reasoning because the Senate may just as reasonably have assumed that the addition of the adverb, ‘immediately,’ would be redundant, rather than necessary. In fact, inclusion of the word, ‘immediately,’ in the phrase, ‘destroy all records,’ is redundant. Moreover, effective legislative draftsmanship eschews use of adverbs and adjectives. If language in a Statute would seem to require inclusion of such qualifiers in order to avoid ambiguity or vagueness, this would suggest, in many instances, that the drafters did a poor job in drafting a statute in the first place. The use of adverbs and adjectives may be useful in works of fiction, but they are generally to be avoided in legal documents and in legislation.Consider our own Bill of Rights. For example, would the drafters of the Second Amendment have gained anything through the use of adjectives or adverbs, apart from the adjectives, ‘free’ and ‘necessary,’ through the assertion that: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” In the context of the Second Amendment, the adjectives ‘free’ and ‘necessary’ provide context and emphasis for elucidating the idea that only through an armed citizenry shall the American people ever hope to prevent tyranny. This is the reason we have the dependent clause in the Second Amendment at all – a point that even Republican members of Congress and supporters of the Second Amendment will not, to our knowledge, openly admit, preferring to refer only to the right of each individual to provide for his or her self-defense. This is an implication behind the Second Amendment to be sure. But, the true purpose of the Second Amendment is to check the power of the federal Government and its standing army: keeping the federal Government and its standing army “in its place,” that is to say, reminding the federal Government that it serves at the behest and pleasure of the American people and not the other way around. Moreover, in looking to Legislative history of a Statute at all, we find in this legal and logical reasoning of Judges Tatel and Garland something markedly different in their approach to judicial reasoning when compared with the approach employed by Justice Scalia. What we need ask is whether a judge ought to be considering legislative history at all when determining the meaning of a statute. Judges Garland and Tatel obviously say, “yes.” Justice Scalia virtually invariably said, “no.”Although, there is some Supreme Court precedent for looking to the Legislative history of a statute in order to explicate a statute’s meaning, one must use Legislative history gingerly, if at all. Judge Scalia took a very dim view of looking to Legislative history to discern the meaning of a Statute because he felt it is unnecessary to do so, can become a crutch for those who generally look to Legislative history, where, as here, a Judge is attempting to force through a particular outcome and looks to Legislative history simply to buttress that outcome, and, lastly, when relying on Legislative history, a judge is prone to errors in legal reasoning and, this, in turn, more often than not, leads to erroneous legal decisions. Judges Tatel and Garland use Legislative history, erroneously and in fact egregiously. They assumed the Statute in question, 18 U.S.C. § 922(t)(2)(c)(C), was ambiguous precisely because Legislative history refers to an alternate rendering of the Statute that happened to include the word, ‘immediately,’ in the House version that was never adopted by the Senate and never made it to the final enacted version of the Statute. The Judges don’t say this, but that is clear enough from an elucidation of their analysis.The Judges argue that the Statute, 18 U.S.C. § 922(t)(2)(c)(C), is ambiguous, not because a plain reading of the Statute alludes to any instance of ambiguity or vagueness in meaning – it doesn’t – but because Judges Tatel and Garland sought to render a decision in favor of Janet Reno and the Justice Department in order to undermine the Second Amendment; and the use of and reliance on Legislative history gave the Judges the ammunition they needed to make a plausible argument in support of a decision (the conclusion) they wanted – not a decision that happened to follow from legal precedent and sound logic – in other words – a decision that they sought to avoid.The Reno case is one prime example of misuse of Legislative history. The case stands as an object lesson of bad legal reasoning and serves well to explain why Justice Scalia was himself loathe to rely on Legislative history except where ambiguity or vagueness is clear, and demonstrable, and unequivocal on the face of the language of a Statute under review. But that is not at all true in the Reno case. The Statute, 18 U.S.C. § 922(t)(2)(c)(C) is clear and unambiguous on its face – both in the language of the specific clause and in the context of the rest of the Statute, 18 U.S.C. § 922(t)(2)(c). The decision of the Court’s majority in the Reno case, rests on faulty logic and is predicated on the two Judges’ antipathy toward the Second Amendment.In Part 7, the final segment of this multi-part series, we look at a legal methodology known as “textualism.” Justice Scalia was a strong proponent of this methodology for a very important reason. Adherence to the methodology promotes judicial honesty and integrity. Something altogether lacking in the majority’s opinion in the Reno case.[separator type="medium" style="normal" align="left"margin-bottom="25" margin_top="5"] Copyright © 2015 Roger J Katz (Towne Criour), Stephen L. D’Andrilli (Publius) All Rights Reserved.

THE FLAWS IN JUDGE GARLAND’S REASONING

THE FLAWS IN JUDGE GARLAND’S REASONING

AN ANALYSIS OF THE CASE NRA VERSUS JANET RENO

PART 4

RECAP

In the last few segments of this multi-series article we have provided you with a deep analysis of the case National Rifle Association of America, Inc. vs. Reno, 216 F.3d 122, 2000 U.S. App. LEXIS 15906, 342 U.S. App. D.C. 231 (D.C. Cir. 2000). A thorough analysis of the case provides the U.S. Senate and the American people with a detailed look into the mind of Judge Merrick Garland, providing the U.S. Senate and the American public with a clear account of Judge Garland’s view of the Second Amendment.A deep analysis of the Reno case demonstrates Judge Garland’s lack of sympathy for and lack of deference to the Second Amendment. This conclusion is clear, categorical, and irrefutable. Importantly, an analysis of the Reno case also highlight’s flaws in the Judge’s reasoning as he obtains the result he wants through obvious intentional misapplication of the law. The case is, then, a harbinger of things to come. A comprehensive analysis of the Reno case illustrates, for both the U.S. Senate and the American public, what they may expect of U.S. Court of Appeals Judge for the District of Columbia Circuit, Merrick Garland, were he to step into Justice Antonin Scalia’s shoes, becoming the newest member of the smallest and certainly one of the most elite government institutions in America, as Associate Justice of the U.S. Supreme Court.The American people can expect that, at some point, were Justice Garland to serve on the U.S. Supreme Court, the decisions in District of Columbia vs. Heller, 554 U.S. 570; 128 S. Ct. 2783; 171 L. Ed. 2d 637; 2008 U.S. LEXIS 5268 (2008) and McDonald vs. City of Chicago, 561 U.S. 742; 130 S. Ct. 3020; 177 L. Ed. 2d 894; 2010 U.S. LEXIS 5523 (2010) would be systematically eroded and ultimately overturned, as Justice Garland would join the liberal wing of the Court – a group of Justices that dissented from the decisions in both cases. As the ninth Justice on the high Court, Justice Garland would constitute the fifth critical vote of the liberal wing, giving the liberal wing a decisive majority. Had Justice Garland served on the high Court in lieu of Justice Scalia at the time the Heller and McDonald cases were decided, the outcome of those two seminal Second Amendment cases would have been decidedly and decisively different.President Obama intends for Justice Garland to serve on the high Court and if Obama’s nominee succeeds to the high Court, Obama’s socialist agenda will be secured and assured for generations of Americans to come. The argument given that Judge Garland is a “centrist” means nothing in a vacuum, and that is how it is used. In fact, if anything, the expression as employed, as a one-word descriptor for Judge Garland, is patently misleading and is meant to misguide the U.S. Senate and the American people. Indeed, if, in the worst of all possible worlds, Hillary Clinton were to become President of the United States, she could renominate and probably would renominate Judge Garland to the high Court if President Obama is unable to persuade the U.S. Senate to hold a hearing on Garland’s nomination. Hillary Clinton would be very pleased with Judge Garland, sitting as Justice Garland on the high Court.It is childish and disingenuous of the mainstream media, on behalf of Obama, to threaten the U.S. Senate by suggesting that, if the Senate fails to hold a hearing and fails to confirm Judge Garland as U.S. Supreme Court Justice Merrick Garland, a President, such as Hillary Clinton, will nominate a person who is “more” liberal than Judge Garland.Keep uppermost in mind: Judge Garland was always on Obama’s short list of nominees. Judge Garland is, then, a Judge in the same vein as Justices Sotomayor and Kagan. Judge Garland is of the same bent and temperament and shares the same legal and social philosophies of Justices Sotomayor and Kagan. Were that not so, President Obama would not have nominated Judge Garland to sit on the high Court in the first place. Never forget that!

JUDGE GARLAND’S ANTIPATHY TOWARD THE SECOND AMENDMENT IS ON FULL AND EXTRAVAGANT DISPLAY IN THE RENO CASE.

The Reno case deals with an arcane and narrow issue of law: the meaning of the words ‘destroy all records’ as set forth in the Brady Handgun Violence Prevention Act of 1993, as codified in the U.S. Code, 18 U.S.C. § 922(t)(2)(c). The Brady Act is part of, and subsumed in the broader and vaster Gun Control Act of 1968. As the Gun Control Act of 1968 becomes ever broader and vaster, it whittles away at the import, purport and, indeed, power and authority of the Second Amendment. Eventually, antigun Congressional Legislators intend, through enactment of a continuous stream of antigun Statutes, to undermine the Second Amendment to the point of de facto repeal of it. So, don’t be misled: the Reno case has a major impact on the Second Amendment despite or, perhaps, in spite of the seeming arcane, narrow legal issue that the Court dealt with in the case.

CONGRESS PROHIBITS THE CREATION OF EITHER A FEDERAL OR STATE GUN REGISTRY BUT JUDGE GARLAND SAYS THAT CREATION OF A GUN REGISTRY IS ACCEPTABLE

The Brady Act requires each and every federally licensed firearms dealer to undertake an instant criminal background check of all prospective purchasers of guns and ammunition. The Justice Department, the antigun enforcement arm of the federal Government is charged with creating the rules that implement the Brady Act. So, whenever an individual seeks to purchase a firearm or ammunition for a firearm, the federally licensed firearms’ dealer must perform a criminal background check of that individual and the firearms' dealer does this by tapping into the Justice Department’s NICS database. Once the licensed gun dealer completes “the call” and finds the prospective buyer to be under no disability, the firearms transaction and/or ammunition transaction can be completed. But, what becomes of the records of the transaction? That is the nub of the Reno case; for, Congress says that the records of the transaction are to be destroyed.  The United States Code, 18 U.S.C. § 922(t)(2)(c)(C), says, “destroy all records of the system with respect to the call (other than the identifying number and the date the number was assigned) and all records of the system relating to the person or the transfer.” Why? Congress says the NICS records must be destroyed so as to prevent the federal government or any State government from creating a gun registry. Congress said in no uncertain terms, “no department, agency, officer, or employee of the United States may require that any record or portion thereof generated by the system [NICS] established under this section be recorded at or transferred to a facility owned, managed, or controlled by the United States or any State or political subdivision thereof.” Pub. L. No. 103-159, § 103(i), 107 Stat. at 1542. Did Janet Reno’s Justice Department comply with these clear Statutory prohibitions? In a word, “no!” Under the rules the Justice Department promulgated, as codified in the Code of Federal Regulations, 28 C.F.R. § 25.9(b), the Department establishes and maintains an “audit log” of all firearms’ and ammunition transactions. It is in the very creation of an “audit log” that the Justice Department  sets in motion the steps allowing for implementation of an illegal backdoor gun registry. Two Judges of the United States Court of Appeals for the District of Columbia Circuit, who decided the Reno case,  saw no problem with this. United States Circuit Court of Appeals Judge Tatel wrote the opinion for the majority. Judge Garland agreed with both the decision and the reasoning of the Court and, so, adopted the opinion as his own. It is as if he had written the opinion himself. In the majority opinion the Judges go so far as to admit that the Justice Department’s “audit log” could indeed function as a gun registration system, but, then, upon that admission, the Judges attempt, bizarrely, and unsuccessfully, to dismiss the import of it. Judge Tatel says: “It does not follow, of course, that the Audit Log could never function as a firearm registry. But the Log’s deficiencies as a system for registering firearms make, it unlikely that it would be used for that purpose.” Judge Garland agreed with Judge Tatel's assertion since he did not write a concurring opinion where he might have, at the very least, reasonably concluded that if the Justice Department's Audit Log could function as a firearms' registry -- whether it has deficiencies in that regard or not -- the very creation of an "Audit Log" is inconsistent with Pub. L. No. 103-159, § 103(i), 107 Stat. at 1542, as correctly pointed out by Judge Sentelle, in the Judge's dissenting opinion.But, Judge Garland did not disagree with Judge Tatel's very odd remark, grounded, as it is, on very shaky reasoning. Moreover, the assertion also logically implies that the Justice Department has created a rule that amounts to a clear intrusion upon on the First Branch of Government, Congress. Thus, the Justice Department's rule amounts to an  transgression of the Separation of Powers Doctrine. And it is of no avail for Judges Tatel and Garland to attempt to backpedal from the dire implication of the remark by saying that the “Audit Log” is a poor example of a gun registration scheme. Whether a fine example of a registration scheme or not, the “Audit Log” does function as a gun registration scheme or can be used as such. And that is enough to find 28 C.F.R. § 25.9(b) illegal on its face. For, in enacting the Brady Act, Congress made clear that neither State governments, nor the Second Branch of the Federal Government – the Executive Branch – is permitted to create a gun registry or to create something that, if not intended to be a gun registry scheme, can certainly function as one. The Justice Department has done just that. And, Judges Tatel and Garland have stamped their judicial imprimatur upon it.It does little for Judges Tatel and Garland to wiggle out from under the implication of their remark to say that, because the Audit Log has deficiencies as a firearm registry, we don’t have to worry that it may one day become one or that if it is at the present time in fact one, it is a bad one, so there is no need for the public to be concerned about it. Even so, if we go that far, are not Judges Garland and Tatel saying that the Justice Department could certainly remove the deficiencies and create a first-class gun registry?In the next article, Part 5 of this multi-part series, we take a close look at the meaning of the phrase, “destroy all records of the system,” in the context of the Statute.[separator type="medium" style="normal" align="left"margin-bottom="25" margin_top="5"] Copyright © 2015 Roger J Katz (Towne Criour), Stephen L. D’Andrilli (Publius) All Rights Reserved.

THE GUN CONTROL ACT OF 1968 AND THE BRADY ACT OF 1993

THE GUN CONTROL ACT OF 1968 AND THE BRADY ACT OF 1993

AN ANALYSIS OF THE CASE NRA VERSUS JANET RENO

PART 3

THE LANGUAGE OF THE GUN CONTROL ACT OF 1968

To understand the impetus behind the Attorney General’s actions that led to NRA’s action against the Attorney General and the Department of Justice, we need to take a look at the Gun Control Act of 1968. What does it say? The Gun Control Act of 1968, as set forth in the United States Code, 18 USCS § 922(g) or (n), provides that certain individuals, including, inter alia, convicted felons; fugitives from justice; aliens who are in this Country illegally; persons who have been adjudicated mentally defectives or who have been committed to a mental institution; members of the military who had received dishonorable discharges; individuals who have been convicted of a misdemeanor of domestic violence; or those Americans who have renounced their citizenship; shall not be permitted to possess a firearm or ammunition or to transfer or otherwise transport firearms or ammunition in interstate commerce. Ostensibly, in order to assist a federally licensed dealer in firearms in ascertaining whether an individual, who seeks to own and possess a firearm and/or ammunition, is permitted under State law or under the laws of the United States to do so, Congress enacted the Brady Handgun Violence Prevention Act of 1993. The Brady Act was subsumed into the broader Gun Control Act of 1968, becoming a critical component of the original Act, for antigun groups. The Brady Handgun Violence Prevention Act requires the Attorney General to establish a “national instant criminal background check system,” better known by the acronym, “NICS.” Three provisions of the Brady Handgun Violence Prevention Act, as set forth in 18 U.S.C. § 922(t)(2)(c), require the Justice Department to destroy records of those individuals – those American citizens – who are lawfully permitted, to possess firearms and ammunition under applicable federal law. The Brady Act, 18 U.S.C. § 922(t)(2)(c), does not, however, say anything about destruction of records of those individuals who are not permitted, under 18 U.S.C. § 922(g) or 18 U.S.C. § 922(n), or under State law, to possess firearms or ammunition.The instant background check system is presented by the proponents of the Brady Handgun Violence Prevention Act of 1993, and, as mentioned by the Court in the Reno case, to be a mechanism to assist a lawful, federally licensed dealer in firearms in determining, essentially instantaneously, whether a prospective purchaser of a firearm or firearms and/or ammunition is lawfully permitted, under federal and/or State law, to possess firearms and ammunition. If so, the transfer of one or more firearms and/or ammunition for a firearm is to proceed. Otherwise, the transaction cannot lawfully proceed. But, the Brady Act, as enacted, does not permit the Justice Department to create a backdoor gun registry program. Yet, this is precisely what the Justice Department would be doing if the Justice Department were to maintain NICS records on a firearms or ammunition transaction of a person who is lawfully permitted to own firearms and ammunition, after an NICS check of the prospective buyer of firearms or ammunition demonstrates that the purchaser is under no disability that would otherwise forbid the transaction from proceeding.But, what does 18 U.S.C. § 922(t)(2)(c) actually say about the retention or the destruction of NICS records as to those citizens who are lawfully permitted to possess a firearm. In pertinent part, the Statute says just this:“If receipt of a firearm would not violate section 18 USCS § 922(g) or (n) or State law, the system shall – (A) assign a unique identification number to the transfer;(B) provide the licensee with the number; and(C) destroy all records of the system with respect to the call (other than the identifying number and the date the number was assigned) and all records of the system relating to the person or the transfer.”

THE LEGAL ISSUE

The paramount legal issue in the Reno case is directed to the meaning of the third requirement of 18 U.S.C. § 922(t)(2)(c) as set forth in 18 U.S.C. § 922(t)(2)(c)(C): namely, whether the Statutory section in question, paragraph “C,” prohibits the temporary retention of NICS records after the seller has conducted the NICS gun background check and has determined that the prospective buyer of a firearm and/or ammunition is not under disability that would otherwise preclude the transfer of the firearm or ammunition from going forward. Specifically, the question is whether the clause, “destroy all records of the system with respect to the call (other than the identifying number and the date the number was assigned) and all records of the system relating to the person or the transfer,” means “destroy immediately.”NRA argues that, in the context of the Statute, the defining clause, “destroy all records of the system with respect to the call” means “destroy immediately.” What NRA is saying is that the meaning of the Statute is simple, straightforward and unambiguous; that the unambiguous meaning of the Statute, as enacted, reflects the clear, categorical, and unequivocal intention of Congress; and, lastly, that since the meaning of the Statute is unambiguous on its face, there is no need to investigate the intention of Congress further.But, the Justice Department disagreed with NRA’s interpretation of the phrase, ‘destroy all records.’ And the Justice Department’s disagreement is exemplified in the rule the Department promulgated to effectuate what the Department understood to be the intention of Congress when Congress enacted the Brady Handgun Violence Prevention Act of 1993. That is to say, the Justice Department created an “audit log.” This audit log contains details of gun purchases. Specific information relating to gun purchases and the manner for retention and the length of time of retention of specific information related to all prospective sales of guns or ammunition is codified in the Code of Federal Regulations, namely, 28 C.F.R. § 25.9. Understandably, NRA is very concerned about the Justice Department’s creation of an audit log. For, the Statute, 18 U.S.C. § 922(t)(2)(c), does not speak of an “audit log.” It does not exist in the Congressional Act itself. It is, rather, a creature of the administrative regulations promulgated by the Justice Department to give efficacy to Congressional Legislation -- as the Justice Department happens to interpret that legislation. The creation of an “audit log” originated with the Justice Department. And therein is the rub. Was this necessary? Does the creation of an audit log and rules for retention of firearms' and ammunition transactions a reasonable interpretation of Federal Statute? That is to say, is the creation of an audit log and rules for retention of firearms and ammunition transactions by the Justice Department consistent with Congressional intention?The Justice Department believes so. But NRA argues, understandably, that the existence of an audit log amounts to a backdoor registry – something the Justice Department insists that the audit log isn’t. The Brady Handgun Violence Prevention Act specifically prohibits the creation of a firearms’ registry. As dissenting Judge Sentelle said, “The Brady Act contains an express provision headed ‘Prohibition Relating to Establishment of Registration Systems with Respect to Firearms.’ Pub. L. No. 103-159, Sec. 103(i), 107 Stat. at 1542.” The Section provides that “No Department, agency, officer, or employee of the United States may require that any record or portion thereof generated by the system established under this section be recorded at or transferred to a facility owned, managed, or controlled by the United States or any State or political subdivision thereof.” Presumably, Senate and House Republicans would not have voted for the Brady Act had the Act specifically included or even allowed for the creation of such a federal firearms' registry.

WHAT IS THE JUSTICE DEPARTMENT’S AUDIT LOG?

As a Department of Government, the Justice Department is tasked with promulgating rules to implement NICS. The Justice Department’s rules for NICS are set forth in the Code of Federal Regulations, 28 C.F.R. § 25.6. This rule establishes the “Audit Log.” NRA contends, quite reasonably, that the “Audit Log” is itself a form of registration because the Justice Department is retaining records of a request to purchase a firearm and/or ammunition even if the information that the Justice Department is retaining does not specify the type or kind of weapon and/or ammunition purchased or, for that matter, whether the sales transaction was even completed. In particular the Justice Department creates a tracking number assigned to all firearms’ transactions. This tracking number is referred to as an “NTN.” 28 C.F.R. § 25.2 says this about the NTN: “NTN (NICS Transaction Number) means the unique number that will be assigned to each valid background check inquiry received by the NICS. Its primary purpose will be to provide a means of associating inquiries to the NICS with the responses provided by the NICS to the FFLs.” The audit log also includes a list of names of individuals who are approved to purchase firearms.Judges Tatel and Garland, arguing for the majority of the Court, curiously admit that the Justice Department’s Audit Log could in fact “function as a firearm registry,” which is patently illegal, but then dismiss the very point they make, by asserting that the Audit Log would not be a useful registry because of deficiencies in the system. Are the Judges then implying that the audit log is a firearms’ registry but that, as a registry, Congress and the American people should accept it, and not be concerned about it, because the audit log is not a very good registry? Does this not demonstrate a flaw in the Judges’ reasoning – bad enough for Judge Tatel, but altogether unacceptable for Judge Garland who would, if President Obama had his way, be headed for a seat on the high Court?Judges Tatel and Garland also assert that, even if the Justice Department does keep specific information of firearms’ transactions of those citizens who are permitted lawfully to possess firearms, the audit log data of permitted firearms’ transactions is purged after six months; the data isn't retained indefinitely. So, the question comes down to whether the language of the Brady Act authorizes the Justice Department to keep data, for any length of time, on individuals who are lawfully permitted to possess firearms. Once again, Judges Tatel and Garland are suggesting that keeping records for six months is no big deal. But is it a big deal? It certainly is a big deal if the intention of Congress when it enacted 18 U.S.C. § 922(t)(2)(c) of the Brady Act intended for the Justice Department never to retain records of gun or ammunition transactions that are authorized to go through which means, as NRA rationally argues that the Justice Department is required to destroy those transaction records immediately.The NRA contends, justifiably, that the Justice Department’s audit log rule is patently illegal and that the Brady Act does not permit the Justice Department to keep records for any length of time. Dissenting Judge Sentelle agreed, pointing out that for the Justice Department to promulgate rules specifying retention of records for any length of time amounts to a gross misuse of executive power.Judge Garland, though, agreeing with both the decision and reasoning of Judge Tatel who wrote the opinion for the majority in the Reno case does not see a problem, arising to Constitutional dimensions with the Executive Branch's Justice Department intruding upon the exclusive province of the Legislative Branch of Government. This requires us to ask whether Judge Garland, sitting on the United States Supreme Court, as Justice Garland, would himself utilize the third Branch of Government, the Judicial Branch, not merely to interpret the law but to make law, and, hence, actively use the power of the Judiciary not to preserve and strengthen the Bill of Rights but to weaken, allowing the Executive Branch of Government to usurp ever more powers unto itself at the expense of the People.In the next few articles we will continue our criticism of the majority opinion in the Reno case pointing to further flaws in the reasoning of Judges Tatel and Garland.[separator type="medium" style="normal" align="left"margin-bottom="25" margin_top="5"] Copyright © 2015 Roger J Katz (Towne Criour), Stephen L. D’Andrilli (Publius) All Rights Reserved.

JUDGE GARLAND SPURNS NRA OBJECTIONS TO JUSTICE DEPARTMENT COLLECTION OF GUN OWNER INFORMATION UNDER BRADY ACT

JUDGE GARLAND SPURNS NRA OBJECTIONS TO JUSTICE DEPARTMENT COLLECTION OF GUN OWNER INFORMATION UNDER BRADY ACT

PART 2

AN ANALYSIS OF THE CASE NRA VERSUS JANET RENO

INTRODUCTION

President Barack Obama and those who support the nomination of Judge Merrick Garland to the U.S. Supreme Court wax poetic about Judge Garland’s many positive traits, naming among these: great intelligence, perceptive analytical ability, meticulous, methodical attention to detail when deciding a case, personal integrity, collegiality, even modesty – and so forth and so on. But, it is most remarkable that, for all of this effulgent, indeed effusive praise, little, if anything is said by the Judge’s proponents and benefactors about the cases Judge Merrick Garland has actually decided and, too, the reasoning Judge Garland employs when deciding a case.So, to fill in that gap, we look at a critical Second Amendment case that Judge Merrick decided as Judge on the United States Court of Appeals for the District of Columbia Circuit. A close look at that case will give both the U.S. Senate and the American public a nice snapshot of how Judge Merrick Garland, sitting on the U.S. Supreme Court as Justice Associate Justice Garland, would likely decide Second Amendment cases that come before the high Court. The U.S. Court of Appeals case that we will be looking at was decided in the first year of the twenty-first century. It is titled, National Rifle Association of America, Inc. vs. Reno, 216 F.3d 122, 2000 U.S. App. LEXIS 15906, 342 U.S. App. D.C. 231 (D.C. Cir. 2000).Our analysis of this case illustrates that, while Judge Garland may be a meticulous, methodical thinker, this does not mean he is not prone to committing errors in both law and logic; and an analysis of the Reno case illustrates many such errors. These errors are compounded by or, perhaps, due precisely to Judge Garland’s evident antipathy toward the Second Amendment. One’s ideological and philosophical bent toward the Bill of Rights does follow one – all the way to the U.S. Supreme Court.

THE IMPORT OF THE RENO CASE

The Reno case involves the proper meaning to be given to one clause in one paragraph of one section of the Gun Control Act of 1968. The case involves, what, at first glance, may seem to be an uninteresting, arcane issue of pertaining to statutory construction. Yet, the central theme of the case should be of concern to any American who expresses even a modicum of interest in the preserving the Second Amendment. The case pertains to criminal background checks on persons who wish to purchase firearms or ammunition.The use of the criminal background check system devised by the Justice Department operates as an end-run around the Second Amendment because it serves to weaken the Second Amendment of the United States Constitution. The argument evinced by antigun groups and by their proponents in State Legislatures, in the U.S. Congress, and in the White House is that criminal background checks simply help keep guns out of the wrong hands and do nothing to preclude the law-abiding citizen from possessing firearms.What is left unsaid, though, is that gun background checks are often backdoor gun registration schemes or, at least, mechanisms that can evolve into gun registration schemes. This is a decidedly bad thing to countenance in a free Republic. It is just this sort of backdoor scheme that the Justice Department created when it promulgated rules to effectuate the instant background check program enacted by Congress in 1993. The Justice Department had no authority, though, to create what amounts to or, at least, may eventually evolve into, a hidden federal firearms’ registration program. The rules that Reno’s Justice Department created to implement Congressional legislation is cause for alarm. The NRA thereupon brought action against Janet Reno, Attorney General, challenging the legality of the Justice Department’s criminal background check rules related to gun transactions. The United States District Court for the District of Columbia dismissed NRA’s Complaint against the Attorney General. NRA then appealed the adverse decision of the lower United States District Court to the United States Court of Appeals for the District of Columbia Circuit. The case was heard by a panel of three Judges, namely, Judges, Tatel, Garland, and Sentelle. Two of the three Judges, Tatel and Garland, ruled in favor of the Attorney General, against NRA, thereby affirming the decision of the lower Court, against NRA. Judge Tatel wrote the opinion for the majority. Judge Garland, Obama’s nominee to replace Justice Antonin Scalia on the United States Supreme Court agreed with both the decision and the reasoning of Judge Tatel, thereby making Judge Tatel’s opinion essentially his own as well. Judge Sentelle wrote a scathing dissenting opinion.The dissenting Judge agreed with NRA and chastised the Attorney General, Janet Reno, asserting that the national instant criminal background check system “statute establishes that Congress has unambiguously told the Attorney General that she shall not do what she is doing in the regulations.” Judges Garland and Tatel, however, disagreed with NRA's arguments, striking a blow to the Second Amendment. Since two Judges out of three ruled in favor of Janet Reno, we are stuck with bad law.To understand why the Justice Department’s actions do cause and should cause alarm to Americans who hold the Second Amendment sacrosanct and inviolate we need to take a look, briefly, at the Gun Control Act of 1968 and to the Brady Handgun Violence Prevention Act of 1993 that amends the Gun Control Act of 1968. We do so in Part 3 of this multi-series article.[separator type="medium" style="normal" align="left"margin-bottom="25" margin_top="5"] Copyright © 2015 Roger J Katz (Towne Criour), Stephen L. D’Andrilli (Publius) All Rights Reserved.

JUDGE GARLAND AND THE SECOND AMENDMENT: HOW DOES JUDGE MERRICK GARLAND FARE AGAINST JUSTICE ANTONIN SCALIA

JUDGE GARLAND AND THE SECOND AMENDMENT: HOW DOES JUDGE MERRICK GARLAND FARE AGAINST JUSTICE ANTONIN SCALIA

PART 1

PREFACE TO ANALYSIS OF THE CASE NRA VERSUS JANET RENO

To test the caliber of a person who would serve as a Justice of the United States Supreme Court – the one Court constituting the Supreme Judicial power in the Land and constituting, as well, the third essential Branch of Government, as established by Article 3, Section 1 of the United States Constitution – which says, in pertinent part, “[t]he judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish” – we do look to that person’s intelligence certainly. But great intelligence, while certainly a necessary characteristic of a Justice, does not, of itself, a great Justice make.Much has been made and, undoubtedly, will continue to be made of Judge Garland’s formidable intellectual prowess. A litany of Judge Garland’s intellectual gifts is a continuous refrain we hear from the Judge’s benefactors and proponents. But, when recited in a vacuum, as it invariably is, such praise amounts to little more than empty rhetoric.Of course a person who is gifted with great intelligence – when such intelligence is also coupled with and tempered by collegiality – another quality often attributed to Judge Garland – would seem to be a most suitable candidate to serve on the U.S. Supreme Court. But, is such a person really suitable to serve as Justice on the highest Court of the Land? If a person is indifferent to or contemptuous of our Nation’s Bill of Rights ought that person serve on the highest Court of the Land if, on balance, that person has so many strong qualities, skills, and attributes to be brought to the high Court? We do not believe so.For, such a person, who is indifferent to, places minimal emphasis on, or is altogether contemptuous of our sacred Bill of Rights, is a person who is capable of doing incredible damage to the well-being of a free Republic if confirmed by the U. S. Senate to sit on the highest Court of the Land. For the decisions of the U.S. Supreme Court Justice – even those of a dissenting Justice on the high Court – can have a decided and decisive impact – for good or ill – on our Nation’s institutions, on the continued presence of our Nation’s core values, on the nature of the education of our children, and in the well-being of every American citizen.Thus, we must look to other aspects of a person to ascertain whether, for the good of the Country and for its citizens, that person is best suited to be ensconced as a Justice in our third Branch of Government and therein do service on behalf of the American People – for life or until that Justice otherwise decides, as did Justice Sandra Day O’Connor and Justice David Souter, to retire from the high Court. The work of a Justice becomes so much more important when the other Two Branches fall short – all too often, far short – of their duty to the Nation, to its People, and to the Bill of Rights of the U.S. Constitution. So, we must ask: while character and integrity of a person are certainly critical factors for consideration, along with a perceptive mind and keen intelligence, to what does that person’s character and integrity, perceptiveness and intelligence, as a Jurist extend? Does that person exhibit reverence to and uncompromising devotion toward our Bill of Rights? Or, does that person consider our Bill of Rights dispensable?The first Ten Amendments that comprise our Bill of Rights are, together, the one critical component of the U.S. Constitution that operates as the ultimate restraint on the power of the federal Government and on its standing army to suppress the Nation’s citizenry. The Bill of Rights establishes, in no uncertain terms, that such power and authority the federal government exercises is limited and is granted to the government by the American people in whom absolute power resides and for such period of time that the federal government and its standing army do not forget in whom ultimate and absolute power resides. Thus, a person’s character and integrity, perceptiveness and intelligence are critical factors for consideration but they must be tied to a Jurist’s philosophical attitude toward the American citizenry’s Bill of Rights.So, how does Judge Merrick Garland fare, apropos of one clear and unequivocal right of the people – the Right of the People to keep and bear arms. The case, National Rifle Association of America, Inc. vs. Reno, 216 F.3d 122, 2000 U.S. App. LEXIS 15906, 342 U.S. App. D.C. 231 (D.C. Cir. 2000) offers a clear, unmistakable, and disturbing clue. The case was decided by a three Court panel that consisted of Judges, Sentelle, Tatel, and Judge Garland, the last of whom is President Barack Obama’s nominee, whom the President has nominated to replace the late Justice, Antonin Scalia, on the high Court.The decision in the Reno case wasn’t unanimous. Judge Tatel wrote the opinion of the Court and Judge Garland agreed with it. Judge Sentelle was the lone Judge, of the three who decided the case, who dissented from the majority opinion. The two member majority, consisting of Judges Tatel and Garland, affirmed the decision of the District Court, for Defendant Appellee, Justice Department Attorney General Janet Reno, against Plaintiff Appellant, NRA, dismissing NRA’s complaint.Keep in mind that, even though Judge Garland did not write the opinion of the Court, the fact that he signed on to it means he agreed with both the decision of Judge Tatel and with Judge Tatel’s reasoning in it. What does that mean? Just this: Had Judge Garland agreed with the decision but disagreed in whole or in part with Judge Tatel’s reasoning, Judge Garland would have written his own concurring opinion; and had Judge Garland disagreed with the decision, then the decision of the District Court would have been reversed and Judge Tatel’s majority opinion would have been a minority dissenting opinion. The two members, Sentelle and Garland, would then have decided in favor of Plaintiff Appellant, NRA, against Defendant Appellee, Janet Reno, thereby reversing the decision of the lower District Court. But that did not happen! The NRA lost and so did those Americans who live in the District of Columbia, and by extension, so did Americans who live throughout the United States because of the impact that a decision of the U.S. Court of Appeals for the District of Columbia Circuit often has on the rest of the Country. The decision in the Reno case has general application beyond the District of Columbia. Moreover, other United States Circuit Courts of Appeal give deference to a decision of the United States Court of Appeals for the District of Columbia Circuit. The U.S. Court of Appeals for the District of Columbia Circuit is considered the most influential Court in our Federal and State Court System second only to the United States Supreme Court itself.In the next article we look at the particulars of the Reno case. You will come to see that, although, President Obama, argues, as do others who support the President’s nomination, that Judge Garland is a brilliant, thoughtful, meticulous jurist, Judge Garland’s reasoning, as an extension of Judge Tatel who wrote the opinion, is both legally and logically suspect in the Reno case. The reasoning is fraught with legal and logical errors.Of late, we have heard from Vice President Joe Biden, Senate Minority Leader, Harry Reid. Even a few – very few – Republican Senators have chimed in on behalf of Judge Garland. But the U.S. Senate should hold fast, and deny a confirmation hearing. Why do we say this? We say this because Judge Garland, sitting on the high Court as Justice Garland, would change the composition of the Court, and we are not talking here of the obvious change in numerical composition – back to the seeming “magic number, nine.” We are talking here of  substantive and substantial compositional changes in the temperament of the high Court; a quantum change in the manner in which the new majority of Justices – Ginsberg, Breyer, Sotomayor, Kagan, and Garland – would decide cases; the rationale the new majority would use; the peculiar legal and logical tests the new majority would employ; the upheavals to Justice Scalia’s legacy on the high Court the new majority would make; of the cases that the new majority would overturn; and a reduction in the emphasis on our National Sovereignty and on the U.S. Constitution in favor of a new international perspective the new majority would introduce. How do we know this?Analysis of actual case law always elicits the truth – the proof of the pudding. So it is that those who trumpet the greatness of Judge Garland do so without bothering to look at the cases he decided during the Judge’s tenure on the U.S. Court of Appeals for the District of Columbia Circuit. It is what Judge Garland’s supporters don’t say about Judge Garland that is worrisome. They don’t discuss the cases he decided and the legal and logical tests he employed in rendering those decisions. For what a person does as a Judge -- that Jurist's ideology and philosophy and methodology of reasoning -- goes with him when that Judge sits as a Justice on the U.S. Supreme Court.Truth always trumps rhetoric. Rhetoric is often eloquent, even effusive. Truth is often blunt; not pretty; it goes down hard. In the ultimate analysis, though, truth always trumps rhetoric. A pity that truth, unlike rhetoric, is something in consistently short supply in the realm of politics.[separator type="medium" style="normal" align="left"margin-bottom="25" margin_top="5"] Copyright © 2015 Roger J Katz (Towne Criour), Stephen L. D’Andrilli (Publius) All Rights Reserved.

THE U.S. SENATE MUST HOLD FIRM: OBAMA’S DARLING CHILD, JUDGE MERRICK GARLAND, MUST NOT GAIN JUSTICE SCALIA’S SEAT ON THE U.S. SUPREME COURT

THE U.S. SENATE MUST HOLD FIRM: OBAMA’S DARLING CHILD, JUDGE MERRICK GARLAND, MUST NOT GAIN JUSTICE SCALIA’S SEAT ON THE U.S. SUPREME COURT

Obama is tenacious. His intention to make Judge Merrick Garland a Justice of the U.S. Supreme Court will not let up. If anything, Obama’s efforts to place Judge Garland on the high Court are gathering steam. Obama is continuously thrusting Judge Garland into the limelight.Obama is well aware that, if the Senate relents and allows a hearing on Judge Garland’s confirmation, Judge Garland is very likely to become a U.S. Supreme Court Justice, replacing the late Justice Antonin Scalia. If that should occur, Obama’s goal of control over the Judiciary will be complete. Obama will be three for three on his Judicial nominees, and the liberal wing of the Judiciary will have a clear majority. The Democrats would love to see this. That is bad enough. What is worse, two Republican Senators, Mark Kirk of Illinois, and Susan Collins of Maine, have called for a hearing and vote on Obama's nominee, in defiance of Senate Mitch McConnel’s clear orders to Republican Senators that they hold firm: no hearing on Obama’s nominee, Judge Garland!Senator Kirk isn't listening to Senate Majority Leader Mitch McConnel. But, then, Senator Kirk is a virulent opponent of the Second amendment. That, we know; and Senator Susan Collins views on the Second Amendment are suspect now in light of her support for a hearing and vote on Garland’s nomination to the Supreme Court, in defiance of Senate Majority Leader, Mitch McConnel’s call to Senate Republicans to hold firm.Hardly a day goes by without Obama thrusting Judge Garland like a dart into the Senate’s eye. And the mainstream media is doing its part as a puppet of the Obama Administration to keep Garland’s name and photo before the public. The New York Times reported, Tuesday, April 12, 2015, in a news article titled, "Senator Grassley and Judge Garland Meet and Rehash the Obvious," that Judge Garland had an informal meeting over breakfast in the Senate dining room.Although several other Republican Senators have previously met with Judge Garland and have talked informally with him – and more Republican Senators will likely meet with Judge Garland in the near future – a meeting between Senator Grassley and Judge Garland is especially ominous because Senator Grassley is Chairman of the powerful Senate Judiciary Committee.Senator Charles Grassley ultimately decides whether a hearing on Obama’s nominee will take place.For all the fanfare over the finer points of Judge Garland’s intelligence, character, and seemingly benign, pleasant nature, precious little information, if any at all, is available from the mainstream media about Judge Garland’s judicial decisional history. Why is that.The New York Times reports, in the same April 12, 2016 article, that Judge Garland met with U.S. Senator Patrick J. Toomey, Republican of Pennsylvania. The Senator made this cryptic comment about Garland: “Based on a number of decisions and my conversation with Judge Garland, I’m not convinced that he would be willing to play the role of a sufficiently aggressive check on an administration.”The “decisions” Senator Toomey is referring to are case law decisions. Senator Toomey did not, unfortunately, elaborate on the point.How does Judge Garland view the Bill of Rights in light of the decisions he has handed down as United States Court of Appeals Judge for the District of Columbia Circuit? What, specifically, is Judge Garland’s position on the Second Amendment? The President isn’t saying; nor is the Vice President; nor is any Congressman; nor is the mainstream media. We, however, at the Arbalest Quarrel, will do so, as we must.To address the chasm in reporting on Garland’s decisional case law history the Arbalest Quarrel has taken a look at one particular case that provides a very clear indicator of Judge Garland’s position on the Second Amendment.In a multi-part series we peer closely at one particular case. The case is National Rifle Association of America, Inc. vs. Reno, 216 F.3d 122, 2000 U.S. App. LEXIS 15906, 342 U.S. App. D.C. 231 (D.C. Cir. 2000).While the case has been mentioned on several websites, not least of which is Ammoland Shooting Sports News, where the Arbalest Quarrel often posts, there has not been, to our knowledge, a thorough analysis of the case. The Arbalest Quarrel plunges deeply into the mind of Judge Garland. You can see for yourself what we have found. It isn’t pretty.Make no mistake, if a hearing is held on Obama’s nominee, and votes are cast, and Judge Garland is confirmed as a U.S. Supreme Court Justice, Justice Scalia’s legacy, as a staunch defender of the Second Amendment, will be systematically eroded. The two seminal Second Amendment cases, District of Columbia vs. Heller, 554 U.S. 570; 128 S. Ct. 2783; 171 L. Ed. 2d 637; 2008 U.S. LEXIS 5268 (2008) and McDonald vs. City of Chicago, 561 U.S. 742; 130 S. Ct. 3020; 177 L. Ed. 2d 894; 2010 U.S. LEXIS 5523 (2010), will either be overturned outright or whittled away to the point they cease to have legal significance. That means that four lone Justices, who comprise the conservative wing of the Court, will be unable to stop the coming onslaught wrought by the antigun establishment. The endgame – complete destruction of the Second Amendment – would be, then, just a matter of time.[separator type="medium" style="normal" align="left"margin-bottom="25" margin_top="5"] Copyright © 2015 Roger J Katz (Towne Criour), Stephen L. D’Andrilli (Publius) All Rights Reserved.

JUSTICE: FOR OR AGAINST THE SECOND AMENDMENT? A COMMENTARY ON PRESIDENT OBAMA’S NOMINEE FOR ASSOCIATE JUSTICE ON THE U.S. SUPREME COURT: JUDGE MERRICK GARLAND

JUSTICE GARLAND: A REPLACEMENT FOR JUSTICE SCALIA? NOW, IF ONE DOES NOT SUPPORT THE BILL OF RIGHTS; OR NEVER IF ONE CARES ABOUT AMERICA’S BILL OF RIGHTS!

PART 1

PRESIDENT OBAMA'S SHORT LIST FOR JUSTICE ON THE U.S. SUPREME COURT: FIRST, SOTOMAYOR, KAGAN; THEN KAGAN; AND NOW, GARLAND

Now that President Obama has nominated a judge to the U.S. Supreme Court, a few pertinent questions arise. What will the Senate do? What ought the Senate do? And, most importantly, what do we, the American people, know about the individual Obama has nominated to replace a respected – indeed, a revered – Supreme Court Justice, a man whose shoes cannot easily be filled, Justice Antonin Scalia.Before we get to the third question, let us respond briefly to the first two. The U.S. Constitution sets forth the authority of the U.S. President to nominate an individual to the U.S. Supreme Court. But the Constitution does so with a most important caveat. Article 2, Section 2 of the U.S. Constitution sets forth, in pertinent part that the President, “. . . shall nominate, and by and with the Advice and Consent of the Senate, shall appoint . . . Judges of the supreme Court.”Many news sources are turning this matter into a major spectacle – castigating the U.S. Senate for allegedly dragging its feet in handling this nomination. But, there is nothing in the U.S. Constitution that requires the U.S. Senate to do anything. It need not proffer its advice and consent; and, if it does not, then the appointment cannot be made. In this instance the U.S. Senate has good reason not to proffer its advice and consent.The appointment of a Justice of the U.S. Supreme Court is not to be taken lightly. The appointment of a Supreme Court Justice is for life. A poor decision can undermine the rights and liberties of all Americans. A poor decision can weaken our Republic. The Court’s decisions mold and shape our institutions and impact the life of every American citizen for decades. So, in a very real sense, A U.S. Supreme Court Justice wields  more power than the President of the United States. Would President Obama’s nominee truly faithfully support and defend the Constitution of the United States?President Barack Obama has, to date, nominated two Justices to the United States Supreme Court, and the U.S. Senate has confirmed them. They are Justices Elena Kagan and Sonia Sotomayor, two liberal-wing Justices. No one can reasonably contest the sufficiency of the legal and judicial experience of these two Justices; nor can anyone reasonably contest the intellectual acumen of Justices Kagan and Sotomayor. In most cases, Americans may reasonably assume that the individuals, nominated by the United States President and subsequently confirmed by the U.S. Senate to serve as Justices on the U.S. Supreme Court, do have the necessary intellectual gifts, necessary moral stature and character, and necessary experience to serve as Justices on the U.S. Supreme Court. But is that enough?Many news sources suggest that the academic credentials of a nominee, along with that nominee’s intellectual capacity, and along with the breadth and depth of that nominee’s judicial and legal experiences, and, along with that nominee’s necessary moral bearing, stature and character are all the factors the U.S. Senate need consider to support confirmation of a nominee to the highest Court in the Land. But are satisfaction of those factors enough. Are those factors, alone, sufficient to support confirmation of a nominee to the U.S. Supreme Court? The answer is a resounding, “no.” For, before the United States Senate confirms a nominee, the U.S. Senate should definitely take a close look at the prior judicial decisions of a particular nominee if that nominee had happened to serve in a judicial capacity on a lower court prior to his nomination. Such is no less true of Judge Merrick Garland in the event the U.S. Senate does consider the President’s nominee at all.The U.S. Senate must ask, and the American public has a right to know, whether a given nominee – if he or she is to ascend to the position of Justice on the U.S. Supreme Court – is truly likely to render decisions faithful to the U.S. Constitution and, in particular, whether that nominee would render decisions supportive of an American citizen’s fundamental rights and liberties as codified in the Bill of Rights. The United States Senate Committee on the Judiciary, presided by Senator Chuck Grassley, Republican Iowa, obviously has its doubts in the present instance and, rightfully so, and this would account for the Committee’s reluctance to consider President Obama’s nominee – his third –  especially since Obama will soon be leaving Office and a Republican Party candidate for U.S. President may very well be taking his place.Republican Senators are asking and we must ask as well: what do Americans really know about President Obama’s nominee, Judge Merrick Garland? What is Judge Garland’s position on the Bill of Rights? Is he a strong proponent of individual Rights and Liberties, as codified in the Bill of Rights, or isn’t he?Each Justice, who presently sits on the U.S. Supreme Court, certainly has a definite idea how he or she construes the Bill of Rights. A few construe the Bill of Rights literally and narrowly, giving particular weight to our founders’ view of it. On this view a U.S. Supreme Court Justice would ascribe to the idea that our founding founders believed that, regardless of the current fashion of any particular age, the import and purport of our fundamental rights and liberties remain constant from one generation to the next. They are not to be tampered with. Justice Scalia certainly fell into this camp. Other Justices tend to consider fundamental rights and liberties of Americans apropos of conditions as they exist in American society and in the world today. Those Justices happen to think our Bill of Rights is malleable; that it is subject to change in accordance with popular opinion vis-à-vis political mandates. They have a decided predilection for legislating from the Bench. The Bill of Rights, though, has nothing to do with one’s being comfortable with it or with particular Amendments within it. The Bill of Rights is what it is. It is not a thing to be toyed with. It is not to be subjugated or changed, along with popular culture. The Bill of Rights defines clearly and explicitly what rights and liberties we, as Americans, are entitled to exercise as a free people, living in a free Republic.The point here is that a particular philosophy, regarding the Bill of Rights, has considerable impact on how a Justice ultimately will decide a case. An opinion by a simple majority of Justices on the U.S. Supreme Court affects us all. It affects America’s institutions. It affects the very nature of and continued existence of our Nation, as conceived by the founding fathers.So, contrary to what the left, reporting through a compliant media,  maintains, the question the United States Senate Committee on the Judiciary must wrestle with extends well beyond a nominee’s native ability, intellectual gifts, judicial and legal experience, and moral bearing and character. The question the United States Senate Committee on the Judiciary must wrestle with is subtle and complex. As it pertains to President Obama’s nominee, Judge Merrick Garland, the question goes to the manner in which Judge Garland perceives the Bill of Rights. For, the manner in which Judge Garland perceives our fundamental rights and liberties will color his perception of the cases that come before him. Does he tend to view our fundamental rights and liberties as Justices Breyer, Ginsburg, Kagan, and Sotomayor do – as transitory, ephemeral and infinitely malleable? Or, does Judge Garland view our fundamental rights and liberties in the same vein as Justices Alito and Thomas do, and as Justice Scalia did? Or, perhaps, Judge Garland’s perception of our fundamental rights and liberties fall somewhere in the middle, commensurate with the views of Justice Kennedy and Chief Justice Roberts.As the Wall Street Journal reports, Judge Garland says, “Fidelity to the Constitution has been the cornerstone of my professional life.” Well, one would certainly expect as much. But, that really doesn't take us anywhere. That assertion doesn’t tell us anything about how Judge Garland would really decide a case involving Americans’ fundamental rights and liberties.Each current Justice would certainly assert “fidelity to the Constitution,” and that Justice would honestly believe the assertion. The assertion is little more than a platitude. But, within the U.S. Constitution, the Bill of Rights speaks squarely to the fundamental rights and liberties of the people. In any one case before the U.S. Supreme Court, those rights and liberties will be strengthened or weakened by the Majority on the Court.

THE SECOND AMENDMENT

Of the specific Rights and Liberties expressed in the first Eight Amendments – all critical to a Free Republic – none of those Rights and Liberties speak more loudly to the unique character of the United States than does our Second Amendment. In no other Constitution of any other Nation on the face of this Earth does there exist any Right boldly setting forth: “. . . the right of the people to keep and bear arms shall not be infringed.”Yes, a few nations do permit the citizenry to keep and bear arms but in every such case that “right” is not really a right at all because the purported “right” emanates from government. It does not reside in the people. The “right” expressed is more in the nature of a grant by a nation’s government, or a license, or a privilege.But, the Second Amendment of the Bill of Rights of the United States Constitution operates as a right in the purest sense – preexistent in each individual. If there exists any doubt about that, Justice Scalia, writing for the majority, in the seminal case, District of Columbia vs. Heller, 554 U.S. 570, 128 S. Ct. 2783, 171 L. Ed. 2d 637 (2008), laid that doubt to rest.What the United States Senate Committee on the Judiciary should really be asking, assuming it decides to consider the matter of Judge Merrick Garland’s appointment to the U.S. Supreme Court – or not, as consistent with its prerogative under Article 2, Section 2 of the U.S. Constitution – is this: would Judge Garland if he were to gain the U.S. Supreme Court, tend to weaken or strengthen our Bill of Rights? We can use the Second Amendment as a good example here. How might we explicate this? Just so: would the Heller case have been decided differently if – in a parallel world – Justice Garland had worn the robes of Justice Scalia?Do we have any clues? Well, we have two important clues. The first involves the case Parker vs. District of Columbia, 478 F.3d 370 (D.C. Cir. 2007).Important Note: the Parker case is the seminal Second Amendment Heller case. The Parker case was renamed District of Columbia vs. Heller when the U.S. Supreme Court agreed to hear the case.

ANALYSIS OF THE PARKER CASE

The Appellants, Parker and others, are residents of the District of Columbia. They wanted to carry their handguns in their own homes for self-defense, but the District of Columbia prohibits anyone from having an operable handgun in the home for the purposes of immediate self-defense. The Appellants brought action against the District of Columbia, claiming that the D.C. code violated their Second Amendment “right to keep and bear arms.” The U.S. District Court for the District of Columbia sided with the Appellee government, District of Columbia, finding that the D.C. code did not violate Appellants Second Amendment right to keep and bear arms because, according to the U.S. District Court, the “right to bear arms” only accrues to one who serves in a militia.Appellants, residents of the District of Columbia, appealed. The United States Circuit Court of Appeals for the District of Columbia disagreed with the lower Court. Reversing the U.S. District Court’s decision, the United States Circuit Court of Appeals for the District of Columbia dealt squarely with the issue as to the meaning of and impact of the prefatory and operative portions of the Second Amendment and whether, on the one hand, “the right to keep and bear arms” is an individual right, as Appellant, District of Columbia residents maintain, or whether, on the other hand, “the right to keep and bear arms” is a collective right that applies only to those who serve in a militia, as the Appellee, District of Columbia had argues.In finding for the Appellant residents, against the District of Columbia, the United States Circuit Court of Appeals for the District of Columbia pointed out that the wording of the operative clause also indicates that “the right to keep and bear arms” was not created by government, but rather preserved by it. The United States Circuit Court of Appeals specifically rejected the Appellee District of Columbia’s claim that the phrase, “keep and bear arms” has only a military purpose related to the “militia.” Two of the three Judges on the Circuit Court sided with the Appellants in the case and thereupon reversed the decision of the U.S. District Court.The losing party in the Parker case, namely the District of Columbia, then petitioned the U.S. Court of Appeals for reconsideration, asking the United States Court of Appeals to hear the case en banc. What this means is that the Appellee District Columbia petitioned to have the entire United States Circuit Court of Appeals for the District of Columbia hear the case.Keep in mind that, although Judge Garland serves as Judge on the United States Court of Appeals for the District of Columbia, there are several U.S. Circuit Court Judges. Generally, a panel of three Circuit Court Judges hears a case on appeal from the lower District Court.Judge Garland did not sit on the three-man panel in the Parker case. We are not, though, left merely to speculate as to how he might have ruled in Parker had he served as one of the three original Judges who heard the case. We do have an inkling as to how Judge Garland would have ruled, and therein rests one reason, at least, why the U.S. Senate, on behalf of the American people and on behalf of the well-being of Americans’ Bill of Rights, has no desire to so much as contemplate the nomination, during the remaining months of Obama’s term as U.S. President.Likely, Judge Garland would have ruled against the Appellant D.C. residents and for the District of Columbia in Parker. We know this because of a further action involving the Parker case that transpired before the case was heard by the U.S. Supreme Court, renamed, District of Columbia vs. Heller.Now, no party, in any jurisdiction, can insist, as a matter of right, to have an entire United States Circuit Court of Appeals to reconsider its own decision. A United States Circuit Court of Appeals will do so only if a majority of the Court’s Judges agree to reconsider the decision, in which case the entirety of the Court will rehear the case – that is to say – the Court will hear the case, en banc.There are ten Judges on the D.C. Circuit. Only four of those ten agreed to hear the Parker case en banc. Notably, Judge Garland was one of those four Judges. The case is Parker vs. District of Columbia, 2007 U.S. App. LEXIS 11029 (D.C. Cir. 2007).We really do not need to spend an inordinate amount of time speculating as to why Judge Garland had sought to have the Parker case reheard by all ten United States Circuit Court of Appeals judges. Yes, Judge Garland may have thought – as some news sources infer – that the Second Amendment issue was important enough to warrant a hearing by the entire Court, so that all of the Judges could weigh in. After all, the Parker case dealt directly and squarely with the fundamental right of the people to keep and bear arms. But, likely, there was more to Judge Garland’s desire to have an en banc hearing of the case. And it is just this: if Judge Merrick Garland really feels strongly about Americans’ fundamental rights and liberties, as had Justice Scalia, it is likely that Judge Garland would have voted with the majority of the Court. That means he would have voted against taking up the Second Amendment issue again in an en banc hearing of the case. For, what more could be gained through an en banc hearing of the case? The majority opinion, which supported Appellants’ Second Amendment right to keep and bear arms, was clear, and cogent, and unequivocal.  Moreover, a vote in favor of an en banc hearing would, quite probably, invite a reversal of the decision by the three member United States Circuit Court of Appeals panel. A true advocate for the Second Amendment would never have voted in favor of a rehearing. Tactically, it would make no sense. Appellants, District of Columbia residents had already won. The case should have stopped there.Be that as it may, the Appellant, District of Columbia, having failed to secure a rehearing of the Parker case by the full United States Court of Appeals for the District of Columbia thereupon petitioned the U.S. Supreme Court. The Supreme Court, of course, agreed to hear the case. Parker vs. District of Columbia was renamed District of Columbia vs. Heller. Justice Scalia, writing for the Majority, affirmed the decision of the United States Circuit Court of Appeals for the District of Columbia by a narrow margin: 5 to 4.Granted, while it is not absolutely clear that Judge Garland would not have voted with the Majority in Heller, had he sat on the U.S. Supreme Court, the fact that he voted for en banc review of Parker, as a Judge sitting on the U.S. Circuit Court of Appeals for the District of Columbia, strongly suggests an unhappiness with and uneasiness with the panel's decision -- 2 to 1 in favor of Appellant District of Columbia residents -- a decision clearly supporting the right of the people to keep and bear arms; hence, we may reasonably conclude a general  reluctance on the part of Judge Garland to view the Second Amendment right of the people to keep and bear arms generally favorably and expansively. Imagine, then, Judge Garland's decision in Heller, had he sat on the U.S. Supreme Court. Would he not have sided with the liberal-wing in that case? And, if so, would not the Heller case have been decided differently? Would not the Heller case reflect the reasoning of the U.S. District Court in Parker, rather than the decision of the U.S. Circuit Court of Appeals for the District of Columbia in that case -- a U.S. District Court decision specifically undermining rather than strengthening the right of the people to keep and bear arms?A second and, perhaps, even stronger clue suggesting that Judge Garland is not likely to be a strong proponent of the Second Amendment -- and, indeed, someone who is likely to eviscerate the Second Amendment rather than strengthen it -- is evidenced from a perusal of the United States Court of Appeals for the District of Columbia’s decision in NRA vs. Reno, 216 F.3d 2000 (D.C. Cir. 2000). Judge Garland did have a hand in that decision and, while the case does not deal directly with the meaning of language in the Second Amendment, the case does deal with matters impacting the Second Amendment, and negatively impacting the Fourth Amendment as well.In Part 2 of this article, we will explicate the NRA case for you and explain why, more likely than not, Judge Garland is not a proponent of the Second Amendment -- not by a long shot -- and that, for this reason alone, the United States Senate Committee on the Judiciary should not consider Obama’s appointment of Judge Garland to the U.S. Supreme Court, as an Associate Justice.To be continued. . . .[separator type="medium" style="normal" align="left"margin-bottom="25" margin_top="5"] Copyright © 2015 Roger J Katz (Towne Criour), Stephen L. D’Andrilli (Publius) All Rights Reserved.