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The Garland Nomination: Life After Heller?

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Article first appeared at NRA.

If you care about your Second Amendment right to keep and bear arms and your right to own any gun, anywhere—even in your home for self-defense—you need to call, write and email your U.S. senators today.

Urge them to abide by the U.S. Senate’s long tradition of not holding confirmation hearings on Supreme Court nominees in the middle of the political upheaval of a presidential election year. And if they do break that tradition, urge them to vote NO on President Obama’s nomination of Judge Merrick Garland to the U.S. Supreme Court.

There is no more important thing you can do for your right to keep and bear arms today.

Here’s why:

As NRA-ILA Executive Director Chris W. Cox explained in a compelling opinion piece in theWashington Post, the sudden death of Supreme Court Justice Antonin Scalia—a passionate and principled defender of the Second Amendment—and Obama’s nomination of Judge Merrick Garland to replace Scalia could tip the balance of the Supreme Court against your right to keep and bear arms for generations.

How? First of all, you need to remember that the Supreme Court’s landmark Heller decision, which ended the D.C. gun ban by confirming that you have an individual right to own a handgun to defend yourself in your home, was a 5-to-4 split decision.

Justice Scalia voted in the majority and wrote the majority opinion. But with Scalia’s death, the court is now split 4-to-4. Hard as it may be to believe, only four current justices voted that you have an individual right to keep and bear arms in your own home.

But if you don’t have any right, even in your own home, to keep and bear arms to defend yourself and your family, then why have a Second Amendment at all?

That’s a good question for President Obama’s nominee, Judge Garland. If you don’t have a right to own a gun to protect yourself in your own home, why have a Second Amendment at all?

Because his votes in two cases regarding the Washington, D.C., gun ban clearly suggest he’s on the side of those who believe you have no individual right to keep and bear arms.

First, in 2005, in the case of Seegars v. Gonzales, when plaintiffs sued to end the D.C. gun ban, a panel of judges from the D.C. Circuit Court of Appeals held that the plaintiffs lacked standing. In other words, they ruled that the lawsuit could not proceed.

When those plaintiffs asked the D.C. Circuit to reconsider the case en banc—in other words, for the entire court to decide, rather than just a three-judge panel—Judge Garland voted against rehearing the case. In effect, his vote was to let the D.C. gun ban stand.

But it wasn’t merely deference to previous court decisions that motivated his vote, because two years later, Judge Garland was more than happy to revisit an earlier court decision.

As America’s 1st Freedom reported in 2007, that was in the case of Parker v. D.C., in which a three-judge panel of the D.C. Circuit found that the Second Amendment protects an individual right to keep and bear arms, and that the D.C. ban on handguns violated this right.

This time, when the D.C. government petitioned to have the case reheard by the entire D.C. Circuit Court of Appeals, rather than just a three-judge panel, Judge Garland voted in favor of rehearing the case. In effect, his vote was to reconsider the decision striking down the D.C. gun ban.

In the end, the case ended up as District of Columbia v. Heller before the U.S. Supreme Court, which ruled in favor of your Second Amendment rights.

But Judge Garland’s positions on that case as it made its way through the federal court system clearly show that he’s not on the side of those who believe the Second Amendment is an individual right.

So: What do these robed federal justices believe? For a glimpse, just look at what the dissenters in the Heller case said about your right to keep and bear arms.

In a dissent to the Heller opinion joined by three other justices, including current Justices Ruth Bader Ginsburg and Stephen Breyer, Justice John Paul Stevens wrote, “There is no indication that the Framers of the [Second] Amendment intended to enshrine the common-law right of self-defense …” Those justices also wrote that the Second Amendment “protects only a right to possess and use firearms in connection with service in a state-organized militia.”

In another Heller dissent from the same four justices, current Justice Stephen Breyer wrote, “There simply is no untouchable constitutional right guaranteed by the Second Amendment to keep loaded handguns in the house in crime-ridden urban areas.”

And now the “collective rights” revisionists of history may be in the ascendant.

Indeed, current U.S. Supreme Court Justice Ruth Bader Ginsburg delivered a 2009 lecture to the Harvard Club of Washington, D.C., entitled “The Role of Dissenting Opinions” in which she said that the value of dissenting opinions is that they “appeal to the intelligence of a future day, when a later decision may possibly correct the error …”

As an example of such an error, she specifically cited the Heller case.

So: What would life look like in America if Judge Garland is confirmed to the Supreme Court, and the Court subsequently overturns the Heller decision?

If you don’t have a right to own a gun in your own home to protect yourself and your family, then where would you be “allowed” to own a gun? In your car? In public? On the street?Anywhere? What could be more sacrosanct than your home where you live?

Since Right-to-Carry laws apply outside the home, you can presumably kiss those laws goodbye. So no more right to carry.

Since the Heller dissenters all agreed that the D.C. gun ban, “which focuses upon the presence of handguns in high-crime urban areas, represents a permissible legislative response,” then presumably any and all handgun bans in “high-crime urban areas” would be “permissible.”

And depending on how the government defines “high crime,” those supposed “Gun-Free Zones”—where only the criminals are armed—could grow to encompass the country. The Senate’s long tradition of not considering Supreme Court nominees in election years is supremely important to the Second Amendment’s survival this year. 

If you don’t think that could happen, remember that it already has once in American history. For many years, in most of the country, the right to carry was effectively forbidden. The pendulum of history could very well swing back.

Since the Heller dissenters agreed that bans on so-called “assault weapons” in various jurisdictions “suggest that there may be no substitute to an outright prohibition in cases where a governmental body has deemed a particular type of weapon especially dangerous,” then presumably bans on semi-automatic firearms—whether or not they’re actually used much in crime—would also be “permissible” if a government “deems” them “dangerous.”

In other words, if they “deem” it, then it is done. So what other type of firearm might the government “deem” to be “dangerous”? If they can ban “assault rifles,” when they’re used in less than 2.5 percent of all murders, what’s to prevent them from banning handguns, which violent criminals use in 20 times as many murders as rifles?

Make no mistake: The “slippery slope” could become a vertical drop. The fight over the confirmation of Judge Garland to the U.S. Supreme Court represents what could be a life-or-death decision for the right to keep and bear arms in this country. It’s that serious.

So don’t let the partisan lackeys and PR flaks distract you from this essential truth.

When Senate Majority Leader Mitch McConnell said on Sunday that the U.S. Senate has a “long-standing tradition of not fulfilling a [Supreme Court] nomination in the middle of an election year,” he was right. The Senate hasn’t confirmed any Supreme Court justice nominated during an election year since 1932, when President Herbert Hoover nominated Benjamin Cardozo to the Supreme Court.

At the time, The New York Times wrote of Cardozo, “seldom, if ever, in the history of the Court has an appointment been so universally commended.”

On the other hand, Obama’s nomination of Judge Merrick Garland to the Supreme Court could be the most divisive—and to the Second Amendment, most dangerous—appointment to the Court in history.

He voted to block the case that confirmed the Second Amendment as your individual right. Then, when a federal court upheld that interpretation, he voted to have that decision reconsidered. He also voted in 2000 to allow the federal government to retain the records of lawful firearm purchasers like you—your name, your address, your race and your date of birth—for up to six months, creating a de facto federal firearms registry.

The partisan Democrats pushing Garland’s confirmation know that. And from Vice President Joe Biden to gun-ban zealot U.S. Sen. Charles Schumer, D-N.Y.—who could become Senate majority leader if Democrats seize control of the U.S. Senate this year—they have been some of the loudest voices against confirming justices to the highest court in the land during the political tumults of election years.

In June 1992, then-U.S. Sen. Joe Biden said before the Senate: “If a Supreme Court justice resigns tomorrow or within the next several weeks, or resigns at the end of the summer, President Bush should consider following the practice of a majority of his predecessors in not naming a nominee until after the November election is completed … If the president presses an election-year nomination, the Senate Judiciary Committee should seriously consider not scheduling confirmation hearings until after the political campaign season is over.”

In the same vein, in 2007, almost 19 months before President George W. Bush left office, Sen. Schumer lectured, “We should not confirm any Bush nominee to the Supreme Court except in extraordinary circumstances … I will do everything in my power to prevent one more ideological ally from joining Roberts and Alito on the court.”

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