A myth that has taken hold in conservatives circles since President Barack Obama nominated Merrick Garland to the U.S. Supreme Court is that his choice is an abomination to the legacy of Justice Antonin Scalia on gun rights.
It's a widely dishonest yet potent meme, premised in part in the late justice's landmark 2008 decision that found a constitutional right to bear arms for personal use within the home.
"I can't imagine that a Republican majority in the Senate would want to confirm ... a nominee that is opposed by the National Rifle Association," declared Senate Majority Leader Mitch McConnell (R-Ky.) mere days after Garland's name was revealed -- as if somehow the decision to move forward with a confirmation belonged chiefly to the gun advocacy group.
The rumor casting Garland as the Second Amendment's biggest foe has taken conservative media and politicians by storm, thanks in no small part to an aggressive campaign by the Judicial Crisis Network, an organization committed to doing everything within its power to paint the otherwise centrist judge as a liberal threat to the Supreme Court.
The group's ads are as scary as they come:
The network is going for broke with its anti-Garland crusade, pouring upwards of $4 million into a "let the people decide" campaign in markets where multiple vulnerable Republican senators face tough re-election prospects.
But looking at Garland's record on the Second Amendment, it turns out that there is barely any evidence there to suggest that he'll join a liberal Supreme Court majority to strip away Americans' gun rights as soon as he gets the chance. In fact, he's never written a single word on the issue.
The nonpartisan Congressional Research Service, which advises members of Congress on legal and policy issues, took a deep dive on Garland's paper trail as an appellate judge. The "right to bear arms" section was barely a page long.
The reason for that was simple: only one of the cases Garland considered in his nearly 20 years on the bench dealt squarely with the constitutionality of gun ownership. Garland's involvement in that case was merely procedural: a three-judge panel he wasn't part of had ruled, on a 2-to-1 vote, that a D.C. handgun ban violated the Constitution.
After that ruling, the entire U.S. Court of Appeals for the D.C. Circuit declined, on a 6-to-4 vote, to reconsider it. Garland was one of those four dissenting votes, which means he would have preferred for all 10 judges to give the case a second look.
“It seems difficult to pinpoint with certainty what views Judge Garland may have towards the Second Amendment and the regulation of firearms.”
- Congressional Research Service
The reason this case may stick out in the minds of Garland's critics is what happened after: the Supreme Court agreed to hear it a year later, setting the stage for what would become District of Columbia v. Heller, the Scalia watermark that would forever reshape the Second Amendment.
But the Congressional Research Service remained unimpressed as to what this meant for Garland. This and other scant evidence, its report concluded, "would seem a tenuous basis for any firm conclusions as to Judge Garland’s approach to the Second Amendment and firearms restrictions if he were to be confirmed to the Supreme Court."
In a separate legal brief, this time two pages long, zeroing in on the Second Amendment, the service reached the same conclusion: that the nominee's paltry record on gun rights renders it "difficult to pinpoint with certainty what views Judge Garland may have towards the Second Amendment and the regulation of firearms."
Which is to say, conservative naysayers are wrong to jump to sweeping, fearsome generalizations from Garland's record that he is somehow determined to roll back Scalia's single greatest opinion while on the bench. The evidence just isn't there.
In effect, since that ruling was handed down nearly eight years ago, the Supreme Court has turned away dozens of Second Amendment cases seeking to clarify the scope of the right to bear arms -- most recently in December, when Scalia was still alive.
That's good news for the otherwise centrist Garland. It's a sign that he might fit right in with the current trend among the justices: a hands-off approach that allows Scalia and Scalia alone to have -- for better or for worse -- the final word on the right that the Supreme Court has been unwilling to expand.