Opinions

Jenkins: Obama SCOTUS nominee no friend of Second Amendment rights

President Barack Obama's announcement of his pick to replace the late Justice Antonin Scalia on the U.S. Supreme Court bench was exceptional political theater, appearing so reasonable, but aimed at gutting the Second Amendment.

If Obama has his way, District of Columbia Court of Appeals Chief Judge Merrick Garland will become the nation's 113th justice. If those of us who support the Bill of Rights -- all of it -- are lucky, he will not.

Obama took the opportunity before the cameras to describe Garland as "one of America's sharpest legal minds." The president demanded the Senate give his appointee a fair hearing and an up-or-down vote, something the chamber's leadership vows never will happen during Obama's last year in office.

If the Senate does not act, Obama warned, it would be shirking its duty and "provoke an endless cycle of more tit for tat."

Just listening, one might never suspect Obama is among the most divisive, mean-spirited, constitutionally abusive presidents in American history -- that offering up Garland in the current political maelstrom was a gambit to toss a monkey wrench in Republican election hopes, hand Democrats a campaign whine and, most importantly, give the National Rifle Association a dose of the heebie-jeebies.

Pundits, prognosticators and the left's usual suspects immediately decided Garland was a darned good choice. What's not to like? they wondered. Garland is a judicial moderate, they said. He is white, and, at 63, much older than the average appointee. Garland would not be on the bench forever and he is not as far to the left as Obama's previous two appointments. The kicker? He won bipartisan support -- including GOP accolades -- in years past.

He even has law enforcement chops. As associate deputy attorney general, Garland managed the investigations of the Oklahoma City bombing and Theodore Kaczynski, the "Unabomber."

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His background is impressive. The problem? As too many liberals are wont to do, Garland picks and chooses through the Bill of Rights to find things he likes. The Second Amendment, apparently, is not among them.

A finalist for Obama's two previous Supreme Court picks, Garland almost certainly would opt to reverse D.C. v. Heller, which affirmed the pivotal right to keep and bear arms enshrined in the Second Amendment is an individual right -- not a state right.

In 2007, a three-judge panel of the D.C. Circuit Court of Appeals ruled the District's individual handgun ban -- even for self-defense in homes -- unconstitutional in Parker v. District of Columbia. That case eventually became the landmark District of Columbia v. Heller.

The District sought a full court rehearing of Heller. Six of 10 judges said no, but four, including Garland, voted to rehear it, indicating they wanted to undo the earlier decision. The Supreme Court in 2008, by the way, sided with the three-judge panel's decision.

On the en banc question, Garland voted with David S. Tatel, perhaps the court's most liberal member, and Judith Rogers -- all appointed by President Bill Clinton. They were joined by George H.W. Bush appointee A. Raymond Randolph.

Dave Kopel, attorney, political science researcher and gun rights advocate, wrote at the time that Garland and Tatel's votes were unsurprising. The two were on a three-judge panel in 2000 that "signaled their strong hostility to gun owner rights" in a 2-1 ruling. The case challenged the Justice Department's six-month retention of gun purchase records from the National Instant Check System. Their ruling supported the government's de facto registration scheme.

"At that time, the Tatel-Garland ruling flouted the 1968 federal law prohibiting federal gun registration, and also flouted the 1994 law that created the National Instant Check System and had ordered that instant check records of law-abiding gun purchasers be destroyed," Kopel said.

That Garland is bad news for gun owners and Second Amendment advocates is without question. That he apparently believes the Second Amendment is about the National Guard, not individuals, is obvious, though intellectually dishonest and historically laughable. Even Laurence Tribe, a preeminent liberal scholar, professor of constitutional law at Harvard Law School and the Carl M. Loeb University Professor at Harvard University, concedes the amendment, indeed, protects an individual right.

The good news is the Senate's Republican leadership has slammed the door on considering anybody during Obama's lame duck year. Alaska Sens. Lisa Murkowski and Dan Sullivan, appear to support that decision.

Hopefully, the senators will stick to their guns. If not, this country will radically change, and not for the better among those of us who, as Obama put it, "cling to guns or religion" -- along with the rest of our constitutionally protected, God-given rights.

Paul Jenkins is editor of the AnchorageDailyPlanet.com, a division of Porcaro Communications.

The views expressed here are the writer's own and are not necessarily endorsed by Alaska Dispatch News, which welcomes a broad range of viewpoints. To submit a piece for consideration, email commentary(at)alaskadispatch.com. Send submissions shorter than 200 words to letters@alaskadispatch.com or click here to submit via any web browser.

Paul Jenkins

Paul Jenkins is a former Associated Press reporter, managing editor of the Anchorage Times, an editor of the Voice of the Times and former editor of the Anchorage Daily Planet.

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