Dangerous Disorder in the Courts Regarding the Second

By Jeff Knox

US Supreme Court
Dangerous Disorder in the Courts Regarding the Second

Buckeye, AZ –-(Ammoland.com)- The Federal Court of Appeals for the Second Circuit has once again come down with a shameful ruling based on selective interpretation of the Supreme Court’s narrow rulings in Heller and McDonald, the landmark Second Amendment cases decided in 2008 and 2010.

In this latest abomination from the courts, the three-judge panel concluded that New York and Connecticut’s laws banning virtually all semi-auto rifles as “assault weapons” and all “high-capacity” magazines, do indeed “burden” and infringe on citizens’ rights under the Second Amendment, but they go on to conclude that the states’ “compelling governmental interest in public safety and crime prevention” carry greater weight than individuals’ rights to self-defense – in spite of the fact that “assault weapons” are rarely used in crime, when they are, it is unusual for more than a few shots to be fired, and laws restricting them and “high-capacity” magazines have proven useless in practical application.

Conspicuously missing from the court’s reasoning was any reference to the militia or to the previous, primary Supreme Court ruling on the Second Amendment, US v. Miller.

The Second Amendment is composed of two clauses, the prefatory clause; “A well regulated militia being necessary to the security of a free state,” and the operative clause “the right of the people to keep and bear arms shall not be infringed.” In Miller, the Court commented that this militia relationship had to be considered in any judgement regarding the right to arms. They went on to conclude that, since they weren’t aware of a short-barreled shotgun being a normal part of militia equipment, that such an arm was not protected under the Second Amendment.

For almost 60 years after the 1939 Miller decision, lower courts misused the “militia” comment to mean that the right to arms only applied to people actively enrolled in a government-sanctioned militia. Had that been the Justices intent, Miller’s claim would have been rejected because he was not a militia member. Instead, his claim was rejected because his gun, a sawed-off shotgun, was not recognized as a common militia weapon.

By focusing on self-defense, the Heller decision didn’t negate the Miller decision. On the contrary, it expanded it. Miller addressed the Second Amendment from the perspective of the people’s ability to effectively participate in the militia if called upon to do so, and specifically addressed the types of arms protected for that purpose. Heller recognized that the right extends beyond militia purposes to include the right to arms for self-defense.

For any court to rely solely on one of these decisions without any consideration for the other is an outrage, but courts are now ruling as if Miller had been completely repudiated. It was not.

It should be understood that only the Supreme Court has the authority to interpret the Constitution. Lower courts are required to rule based on established precedents and principles set by Supreme Court decisions. Further, the Supreme Court itself is heavily bound by its own precedent under a doctrine known as stare decisis, a Latin term meaning “the decision stands.” Rulings made by the Court in the 17 and 1800s are still in effect and binding upon the Supreme Court and all lower courts, unless the Supreme Court specifically revisits the issue and reverses that previous decision. That is something that almost never happens. Instead, the Supreme Court goes through elaborate legal gymnastics to work around conflicting precedents, and the lower courts do the same thing. Only the Supreme Court can ultimately decide whether the lower court contortions are acceptable, but there is nothing to compel them to accept a case for review.

Over the past few years there have been numerous cases regarding Second Amendment issues that have been appealed to the Supreme Court with conflicting rulings from lower courts, but the Supremes have doggedly refused to take up those cases.

The decision to review a case requires only the agreement of 4 of the 9 Justices. The Court’s refusal to hear Second Amendment cases probably rises from the fact that the Court is evenly divided on Second Amendment issues. Four of the Justices have made it clear that they do not agree with the Court’s holdings in Heller and McDonald. Justices Breyer and Ginsburg both dissented in Heller, and newly confirmed Sotomayor joined them in dissent against McDonald. While Justice Kagan has not been tested on a Second Amendment case, her views are pretty clear. On the other side, Justices Thomas, Scalia, and Alito have demonstrated a pretty firm commitment to rational interpretation of the Second Amendment, and Chief Justice Roberts seems inclined to go along with them, as long as the decision isn’t too disruptive to the status quo. The real wild card on the Court is Justice Kennedy. He voted in favor of both Heller and McDonald, but it was clear that he had reservations. It is very likely that Kennedy is refusing to make clear his position on cases regarding bearing of arms for self-defense outside the home or bans on “assault weapons,” leaving both sides wondering where he would come down on these issues, and leaving neither side with enough confidence to push forward with a hearing on any of these cases.

As I have pointed out several times before, several members of the Court are likely to retire sometime soon. Justice Ginsburg is the oldest at 82 and in frail health. Next oldest are Kennedy and Scalia, who will both turn 80 in 2016. Of the three eldest members, Scalia’s view is reliably “conservative,” Ginsburg is reliably “liberal,” and Kennedy is the perpetual swing Justice, whose votes decided both Heller and McDonald. Odds are increasingly good that time will catch up with at least one of these three, and possibly one or two more within the next four years. The balance of the Supreme Court is at stake in the coming Presidential election, and in the Senate elections where the next Justices will be confirmed.

It’s up to GunVoters to see that decisions like this latest Second Circuit outrage do not stand, and that Heller and McDonald are not washed away in a political tide.

The Firearms Coalition is a loose-knit coalition of individual Second Amendment activists, clubs and civil rights organizations. Founded by Neal Knox in 1984, the organization provides support to grassroots activists in the form of education, analysis of current issues, and with a historical perspective of the gun rights movement. The Firearms Coalition is a project of Neal Knox Associates, Manassas, VA. Visit: www.FirearmsCoalition.org

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These courts have made themselves Unconstitutionally irrelevant….the 2A is the’ peoples’ guarantee from the government, at the creation of this country .when certain powers were granted to the federal government..as were written in the Constitution…and now today, is not open to their new found interpretation…also it may have to be defended outside of the court rooms..by those that have never lost their sanity or respect for the founders ‘old relic’………..imho……..Semper Fi….

Roger V. Tranfaglia

Thank you Lowell!

Clark Kent

Count Kagan out a long time ago. What she needs to be introduced to is the Constitution.

Dr Timothy-Allen Albertson

Dont count Justice Kagan out. Justice Scalia has introduced her to firearms and she likes them.

Street Survivor

Again we get bitch slapped by black robbed collectivist judges. Appointed by collectivist politicians. Rabid bent wrist syndrome judges historically are rabid anti gunners. Expect nothing good from Chief Justice Roberts. He suffers from that same syndrome .

Wild Bill

TSgtB and Tex, Liberal judges don’t have an enforcement mechanism. They never get their hands dirty (or bloody), of course. That will be done by the Executive branch. So who will be coming to take the guns and ammunition of currently law abiding families? On the federal level, it will be the men and women of the various law enforcement agencies. And who are those people? They are our sons and daughters. They are our uncles, aunts, cousins, nieces, and nephews. The are all the people that were raised like us, and think like us. They are the people that… Read more »


Wild Bill, I completely agree with you. It’s judicial activism’s way of rehearing previous decisions by creating conflicting decisions. A Constitutional Carry and Reciprocity Act would be extremely beneficial. Throw in a Self Defense Act too.


I know its easier said than done but I would not live in any state that restricts my rights


My above comment is for Roger V. Tranfaglia.


Not even slightly. The NFA rules are clear, if more than a little idiotic – the barrel has to be either 18 inches OR the rifle has to be like 26 1/2 long overall, which is how all the 16in barreled guns get through. The whole point of a bullpup is a 20in barrel in an SBR length, so they qualify that way.


The liberal judges,and the liberals in general need to remember that law-abiding firearms owners have the guns and the ammo ! Want to try and take it ?

TSgt B

With all of the bullshit coming out of the courts today, I’ve decided to adopt their strategy: since they feel free to ignore the Constitution, I am relieved of any duty to obey ANY of their edicts that I disagree with.


I keep reading articles about courts and Democrat communists working together to take away our right to defend ourselves and our nation against Tyranny. Well guess what, we have the weapons to do just that, so pass all the laws you want until we reach the tipping point. At that point all those trying to take the guns and pass freedom loss laws will be dealt with. At the top of the list are those in courts and leadership positions that are willing to throw out a constitution that has made us the greatest nation in the world. The cleansing… Read more »


Agree, best to wait until a new POTUS is elected, but then what if we get HRC?

Well Regulated, at the time our Constitution was drafted, means in good working order.

“I say, your timepiece is WELL REGULATED”

And does not refer to restrictions or ‘regulations’.


“… Shall not be infringed …” – Why is that so hard to understand?


The 2nd Amendment is self-preserving. Both for Citizens and for itself. Black-robed tyrants had best not mess with it, or it may bite back if its existence is threatened. Just like any creature would.


moderated = controlled opposition

Wild Bill

The Second Circuit is trying to create an outrageous division in the several circuits, so that an appeal will be made to the overwhelmingly left wing, antigun Supreme Court of the U.S. Then the liberal majority on the SCOTUS will overrule DC v. Heller; McDonald v. Chicago; and maybe even U.S. v. Miller. We must not take the bait.

The people in the Second circuit must endure this outrage until a pro-gun majority is achieved in the SCOTUS. Pathetic and shameful. If these “justices” are so determined to obtain a predetermined result, then what is LAW?

Roger V. Tranfaglia

does this mean that “bullpups” are now “illegal”?…..


It appears that the 2016 election for POTUS will be critical for us 2A.