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Elena Kagan testifies during her confirmation hearings before the Senate Judiciary Committee in June 2010.

National Rifle Association

The NRA’s New Playbook for Making Gun-Grabbers Out of Democratic Nominees

The gun-rights group mines the histories of the president's judicial nominees for anything that resembles a stance on firearms, and finds a way to use it against them.

When it comes to inveighing on the relative gun-rights qualifications of elected officials, the National Rifle Association rarely holds back. For decades, the NRA has graded politicians at both the state and federal level, a system that has served to establish the group as the most influential voice on gun rights in America.

But until very recently, the kind of broadside attack the group launched on Wednesday against Merrick Garland, President Barack Obama’s nominee to fill the vacant seat on the Supreme Court, simply wouldn’t have happened. That’s because the NRA respected the longstanding tradition that allowed Senators to “advise and consent” on judicial picks without fear of retribution.

There was also this fact: Judges can be particularly difficult to assess, because some never even hear a major gun case, or their involvement in such cases hardly illuminates their judicial opinion on the scope of the Second Amendment.   

Near the beginning of President Obama’s first term, in 2009, the NRA was invited by the top Senate Republican to help defeat Sonia Sotomayor, a federal judge who was the president’s first pick to fill a Supreme Court vacancy. Though Sotomayor was ultimately confirmed, the NRA’s move was seen as helping persuade many Republican Senators to vote against confirmation. Shooting down judicial picks seen as insufficiently pro-gun is now part of the NRA’s political mission.  

Senator Mitch McConnell, then the Republican minority leader, was desperate to unify his caucus in order to make Obama a one-term president. According to a New York Times report, McConnell asked the NRA to score how lawmakers voted during Sotomayor’s confirmation proceedings, a move that meant that the NRA would need to take an adversarial position on the nominee. That was tricky. In all of her years serving as a federal judge, Sotomayor had never presided over a gun case, forcing the NRA to dig deep in order to justify its opposition. The group seized on a vote in a case heard by her court, the 2nd U.S. Circuit Court of Appeals. The decision upheld New York state’s ban on nunchucks — a martial arts weapon — on the grounds that the Second Amendment did not prevent states from placing restrictions on deadly weapons. Soon after, the NRA cited that decision to explain its opposition to her nomination, claiming that Sotomayor’s vote meant she did not support the rights of gun owners.

This, to put it mildly, was a reach. At the time, the Supreme Court had not ruled on whether states could ban dangerous weapons. Arch-conservative judges like Richard Posner and Frank Easterbrook, of the 7th Circuit Court of Appeals, agreed with her interpretation.

A year later, in 2010, President Obama had to fill another empty seat on the Supreme Court, and this time he nominated Elena Kagan, who had never before served as a judge. Her lack of a record presented an even greater challenge for the NRA, but the organization got around it. In 1987, Kagan worked as a law clerk for Justice Thurgood Marshall. During that period, according to the NRA, Kagan said “she was ‘not sympathetic’ to a challenge to Washington, D.C.’s ban on firearms.” What the group failed to mention was that Kagan had said she was not sympathetic, specifically, to the man who brought the lawsuit challenging the ban. He had claimed his constitutional rights were violated when he was convicted for carrying an unlicensed firearm.

The NRA also said that Kagan’s stint in the Clinton White House served to disqualify her. A colleague had supposedly described her as “immersed” in Clinton’s aggressive assaults on the Second Amendment, the NRA said, including Clinton’s “scheme” to ban some types of semiautomatic firearms. In actuality, Kagan was carrying out an initiative that had begun under Clinton’s predecessor, George H. W. Bush. She was ultimately working to reinforce his ban on the importation of certain kinds of semiautomatic assault rifles.

Both Sotomayor and Kagan were confirmed with hardly any support from Republican lawmakers. In 2011, the NRA widened its efforts to lower court nominations, too. That year, President Obama nominated Caitlin Halligan to the Court of Appeals for the D.C. Circuit. She was a government lawyer from New York, and like Kagan, she had never worked as a judge. The NRA combed through her history and came up with the following: “Ms. Halligan represented the state in its 2001 lawsuit against numerous gun manufacturers, in which the state argued that the legal sale of handguns created a ‘public nuisance’ under state law.” A similar issue came up later, when Andrew Cuomo was New York’s Attorney General; she wrote a brief for him that sought to hold gun manufacturers liable for some of the violence in the state. As Jeff Toobin explained in The New Yorker, “The NRA punished Halligan for doing her job for New York.”

This time the NRA’s opposition had a bigger payoff. Senate Republicans blocked Halligan’s confirmation, forcing the White House to withdraw its ideal candidate.

Now the NRA says Garland, Obama’s pick to replace Antonin Scalia, does not “respect the individual right to bear arms.” In 2007, Garland, who is viewed as a political moderate, cast a vote in favor of allowing his court to review a crucial opinion by a three-judge panel that had found D.C.’s handgun ban unconstitutional.

Once again, the NRA appears to have overreached. Most legal experts say Garland was not explicitly suggesting he disagreed with the decision to overturn the ban, but rather acknowledging that it broke with longstanding judicial precedent, and therefore merited greater scrutiny.

If Merrick ever appears before the U.S. Senate — itself a question very much in doubt — his record on guns is sure to be at the center of the proceedings. The question is: Which narrative will take hold?

[Photo: AP Photo/Alex Brandon]