John Whitbeck misfires on Merrick Garland's gun record

Gun rights are "hanging by a thread," Republican Party of Virginia chairman John Whitbeck wrote recently in an email urging the rejection of U.S. Supreme Court nominee Merrick Garland.

"When Justice Antonin Scalia wrote his watershed opinion in D.C. v. Heller, it marked the first time that an individual right to keep and bear arms was recognized by the Supreme Court by a razor thin 5-4 vote," Whitbeck wrote.

"Now President (Barack) Obama is attempting to replace Justice Scalia with Judge Merrick Garland, an avowed opponent of our Second Amendment rights. While Justice Scalia voted to overturn D.C.’s draconian gun laws, Judge Garland voted to uphold them," the chairman added, emphasizing the second sentence with bold type.

Whitbeck concluded his email by asking Republicans to sign an Internet petition telling Virginia’s U.S. senators - Democrats Mark Warner and Tim Kaine - that Merrick "must not be confirmed to the Supreme Court!"

Scalia, who died Feb. 13, did write the majority opinion in the Supreme Court’s landmark 2008 ruling on District of Columbia vs. Heller. By a 5-4 vote, the high court found that Washington’s gun regulations - essentially amounting to a ban on handguns in the home - were unconstitutional.

This Truth-O-Meter will focus on Whitbeck’s claim that Garland, who has been a judge on the U.S. Court of Appeals for the District of Columbia Circuit since 1997, "voted to uphold" the handgun ban. A number of conservative organizations and individuals, including Fox News commentator Bill O’Reilly, have made similar statements.  

The D.C. law

The Supreme Court’s decision in Heller was significant because it was the first time justices ruled that the Second Amendment guarantees an individual’s right to own a firearm for self-defense. Until Heller, the widespread understanding was that the right to bear arms did not necessarily extend beyond militia service.

Before the case went to the Supreme Court, though, it was heard in the federal appeals court where Garland serves. In a 2-1 decision, a panel of D.C. appeals judges came to the same conclusion as the Supreme Court: The Washington handgun ban was unconstitutional.

Based on Whitbeck’s claim, one might assume that the single dissenting vote in this D.C. Circuit opinion belonged to Garland. However, it was Judge Karen Henderson who dissented, while Judges Laurence Silberman and Thomas Griffith signed the majority opinion.

Garland didn’t vote on the case at all. He was not part of the three-judge panel that heard it.

After the D.C. Circuit handed down its 2007 decision, the city of Washington asked the court to rehear the case en banc, meaning all of the court’s judges would reconsider the case and not just the three-judge panel. The court ended up denying the city’s petition, but Garland was among the group of D.C. Circuit judges who voted to rehear the case.

It’s misleading to say Garland supported the Washington gun regulations because he wanted to reconsider Heller, as he did not take a formal position on the merits of the case. Rehearing a case en banc is generally used when a case goes against precedent or presents a question of significant importance, and that was true of the Heller case.

Featured Fact-check

Jim Moran

stated on January 10, 2012 in a newspaper column.

"The U.S. gun homicide rate is 20 times the combined rate of other western nations."

D.C. Circuit Judge A. Raymond Randolph, a well-known conservative, joined Garland in voting to reconsider the case. And the George W. Bush administration, though supportive of the notion that the Second Amendment protects individual gun rights, filed an amicus brief asking the Supreme Court to send Heller back to the lower court for broader definition - for example, what type of gun-ownership restrictions should remain constitutional.  

"Garland voted for his court to consider the constitutionality of D.C.'s law," Adam Winkler, a Second Amendment law expert at the University of California Los Angeles Law School, recently told PolitiFact National when it was fact-checking a statement by O’Reilly. "Such a vote does not tell us one way or another how Garland feels about the Second Amendment."

Our ruling

Whitbeck said Garland "voted to uphold" D.C.’s ban on handguns.

Garland never heard the case about Washington’s gun law from the bench. It was ruled unconstitutional by a panel of three other judges on the U.S. Court of Appeals for the District of Columbia Circuit, where Garland serves.

Garland voted in favor of having the full court reconsider the case en banc - not an unusual step when a major decision bucks precedent. Randolph, a conservative judge on the appeals court who didn’t sit on the three-member panel, also voted to have the decision reconsidered en banc.

It’s simply inaccurate to say Garland’s vote to reconsider the case is tantamount to a vote to uphold D.C.’s gun restriction or to extrapolate from it the nominee’s position on the case.

So we rate Whitbeck’s claim False.