4th Circuit Rules Common Rifles not Protected by Second Amendment

By Dean Weingarten

Dean Weingarten
Dean Weingarten

Arizona – -(Ammoland.com)-On 21 February, 2017, the 4th Circuit Court of Appeals ruled that common semi-automatic rifles are not protected by the Second Amendment of the Constitution. The ban includes semi-automatic rifles that can take detachable magazines and have two of these three features: folding stock, grenade/flare launcher, or flash hider.  There is a long list of existing models that are explicitly banned, including all AR15s and variants, and all AK47s and variants. The list of banned guns includes some firearms that are not semi-automatic, such as a version of the Mossberg 500 pump shotgun. The law also bans all detachable magazines that hold more than 10 rounds.

From the decision:

As explained below, we are satisfied to affirm the district court’s judgment, in large part adopting the Opinion’s cogent reasoning as to why the FSA contravenes neither the Second Amendment nor the Fourteenth. We diverge from the district court on one notable point: We conclude — contrary to the now-vacated decision of our prior panel — that the banned assault weapons and large-capacity magazines are not protected by the Second Amendment. That is, we are convinced that the banned assault weapons and large-capacity magazines are among those arms that are “like” “M-16 rifles” — “weapons that are most useful in military service” — which the Heller Court singled out as being beyond the Second Amendment’s reach. See 554 U.S. at 627 (rejecting the notion that the Second Amendment safeguards “M-16 rifles and the like”). Put simply, we have no power to extend Second Amendment protection to the weapons of war that the Heller decision explicitly excluded from such coverage.

The M-16 rifles mentioned in Heller were included in the category “Dangerous and unusual weapons.  From the Heller decision:

We also recognize another important limitation on the right to keep and carry arms. Miller said, as we have explained, that the sorts of weapons protected were those “in common use at the time.” 307 U. S., at 179. We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of “dangerous and unusual weapons.” See 4 Blackstone 148-149 (1769); 3 B. Wilson, Works of the Honourable James Wilson 79 (1804); J. Dunlap, The New-York Justice 8 (1815); C. Humphreys, A Compendium of the Common Law in Force in Kentucky 482 (1822); 1 W. Russell, A Treatise on Crimes and Indictable Misdemeanors 271-272 (1831); H. Stephen, Summary of the Criminal Law 48 (1840); E. Lewis, An Abridgment of the Criminal Law of the United States 64 (1847); F. Wharton, A Treatise on the Criminal Law of the United States 726 (1852). See also State v. Langford, 10 N. C. 381, 383-384 (1824); O’Neill v. State, 16 Ala. 65, 67 (1849); English v. State, 35 Tex. 473, 476 (1871); State v. Lanier, 71 N. C. 288, 289 (1874).

It may be objected that if weapons that are most useful in military service–M-16 rifles and the like–may be banned, then the Second Amendment right is completely detached from the prefatory clause. But as we have said, the conception of the militia at the time of the Second Amendment’s ratification was the body of all citizens capable of military service, who would bring the sorts of lawful weapons that they possessed at home to militia duty. It may well be true today that a militia, to be as effective as militias in the 18th century, would require sophisticated arms that are highly unusual in society at large. Indeed, it may be true that no amount of small arms could be useful against modern-day bombers and tanks. But the fact that modern developments have limited the degree of fit between the prefatory clause and the protected right cannot change our interpretation of the right.

The problem for the Fourth Circuit decision is that the semi-automatic and other firearms banned are not “dangerous and unusual”. AR15 and similar semi-automatic rifles are the most popular rifles in the United States, numbering about 5-10 million.  There are likely a hundred million standard capacity magazines that hold more than 10 rounds in use in the United States.  The Supreme Court unanimously held, in the Caetano PER CURIAM decision (pdf), that:

The Court has held that “the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding,” District of Columbia v. Heller, 554 U. S. 570, 582 (2008), and that this “Second Amendment right is fully applicable to the States,” McDonald v.Chicago, 561 U. S. 742, 750 (2010).

Rifles, as a group, are arms that are least likely to be used in homicides. The Fourth Circuit cleverly avoided considering that fact by pre-emptively excluding those rifles from the protection of the Second Amendment. Because they excluded the rifles from Second Amendment protection, the Court avoided the requirement to apply strict scrutiny to the law.

From the FBI statistics, Rifles are used to commit homicide far less often then hands and feet, knives, or blunt objects.   In 2014, 248 homicides, total, were committed with all rifles.  Hands and feet were used in 660 homicides. Knives were used in 1,490 homicides. Blunt objects were used in 428.  The numbers have been decreasing for several years.

Semi-automatic rifles are commonly in use, therefore they are not “unusual”. They are far less often used in homicides than pistols, hands and feet, knives, or blunt objects. Therefore they are not “dangerous” in the context that they are more than usually dangerous.  All potential weapons are “dangerous”. In context, dangerous has to mean “more than usually dangerous”.

It is likely the case will be appealed to the Supreme Court.  It is far less likely that they will accept the case.  With an eight member Supreme Court, it is very uncertain that the Supreme Court would overturn this decision.

©2016 by Dean Weingarten: Permission to share is granted when this notice is included.

Link to Gun Watch

About Dean Weingarten;

Dean Weingarten has been a peace officer, a military officer, was on the University of Wisconsin Pistol Team for four years, and was first certified to teach firearms safety in 1973. He taught the Arizona concealed carry course for fifteen years until the goal of constitutional carry was attained. He has degrees in meteorology and mining engineering, and recently retired from the Department of Defense after a 30 year career in Army Research, Development, Testing, and Evaluation.

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Wild Bill

@Old, Yes, the Rinos need a reminder.

Sensible guy

It is so bizarre to me that guns (which I love to just shoot at the ranch for hours…Literally…at a time) are in jeopardy of bans or forfeiture to Law abiding citizens, whom most would have no choice but to surrender their arms if a mass exodus ever were announced. (Personally I don’t think that ever will happen) but they would do it to avoid being what most dispise; a criminal. Yet a criminal will never submit to civility or common Law. Why should a criminal remain themselves armed while the righteous become unarmed and vulnerable. And I don’t want… Read more »

Wild Bill

@Sensible guy, Good thing that you”… don’t want to hear the hate from either side…” You surely won’t hear it here! Now, what is this “… mass exodus..” announcement that you are writing about? Where are you going with this nonsense? (ed: pun intended)


how the hell did they do that? and why haven’t they been impeached yet? get on the horn and tell your Congress people to impeach these judges. that’s our only check on the judiciary. make them wish they never crossed the American people…


The Constitution just riles the quislings among us. Now they’re casting aspersions at anybody who doesn’t buy into the Democratic Party Line. Who’s really influenced by Russia?

Jack Hamilton

The people are beyond sick and tired of ignorant, black robed tyrannts who know NOTHING about weapons or the Constitution. The people need to IGNORE AND DISOBEY all federal policies, rules, laws and attempts to disarm us!

JJ Jetplane

What does this mean for AR15 owners? Will the militarized police be beating my doors down and inspecting every bit of my home?

Clark Kent

Hate to burst your bubble, but your local police/sheriffs department is NOT ‘militarized’. Go on a few ‘ride alongs’ with them and learn what second rate, low bid crapola they are forced to work with. Until then, keep your yap shut because you have NO CLUE what you are talking about.


You’re a dbag…until you can make somebody keep their “Yap” shut, just sit there..


I think this proves beyond a reasonable doubt that 10 out of 14 judges in the 4th circuit are retarded and obviously failed con law.

Lyra Fox

I applaud the judges for not bowing down to the tyrannical nra terrorists. TRUMP IS A TYRANT


You don’t even know what an ar-15 is except that’s it’s black? RIGHT?? These judges they should be on the front line of disarm these gun’s owners. Yes but your an asshole.

John Mason

And you are an idiot !


When you decide to pick up a weapon and stand opposed to hate, like all of our past and present military vets, you get to voice an opinion. Until then, I think it’s best for you to just say Thank-you, and for you to be on your way.


Are you scared?.. You better be, cause as soon as We The People catch wind that anyone intends to act on this ruling you’re gonna see something real special…

Wild Bill

@Lyra, That is just silly. How can an organization be terrorist and tyrannical at the same time? I have never seen you post a comment here, before this. Did one of the various Soros funded organizations send you? What could possibly interest you at Ammoland? Oh, and what has President Trump done that is like a tyrant? I suspect that Liara will not be answering these or any other questions.

Wild Bill

@old, No, I would not waste so much as a .22 round on Liara. In a post apocalyptic, no law, scenario, she would be made whore or carry wood because she can not defend her self and is not smart enough to avoid slavery.

Michael F. Twidle

I still blame the millions of gun owners who refuse to support the NRA.

Jack Behrle

The Second Amendment has very clear and understandable language. Federal judges should have enough education to be able to interpret it as written. The two judgements made this week by Circuit Court judges clearly go against the Second Amendment. No judge has the right to inject their personal feelings when rendering judgements in cases, especially when those judgements involve constitutional issues. Now we have a judge ruling the common rifles are not protected by the Second Amendment. Again, this judge clearly placed personal feeling above proper interpretation of the United States Constitution. In reality, this judge is saying he is… Read more »


When will it be time to use our 2A Rights to protect our freedom?

Gun toting Bible thumper

The second they come to take away our weapons brother!


I guess now because they basically just banned rifles.. guess it’s time for the 2nd revolutionary war.. and wtf, Obama’s administration couldn’t even ban them after all those fake school shootings. and now trump tells us he’ll defend 2nd amendment rights and some court just bans rifles like that? seems a bit odd and randomly out of place.. they also block his travel ban.. so are courts just going to ban the entire Constitution now?


When government fails to secure the liberties of the People, it becomes our DUTY.


How, exactly, does this decision secure our liberties? Is it time yet?

Wild Bill

@FUBU, It is not time yet due to lack of logistics. We are in worse logistical shape than the Confederacy.


So what’s new about this? It seems that more and more activists progressive judges are making up law as they go along. Could this cause a Constitutional crisis? What happens when a federal judge rules in a case that is clearly contriving the Constitution? It is unthinkable that a judge would reason in his verdict that Trump violated the rights of non US citizens and by doing so increased the danger to the national security of the United States. This just happened when a federal district court ruled against POTUS ban on immigration from 7 countries that could not vet… Read more »

Wild Bill

, One of the reasons that these people write such “bas ackward” opinions is that they believe that We the People are to unintelligent to understand the Constitution or how they are twisting the Constitution and the various precedents. One way to disabuse these easily embarrassed justices is to write a nice letter to them explaining that we are on to them, and that we understand how they are twisting the law, and that we know why they are doing that.

Mark Damon

“Weapons of War” as descibed by these progressive judges, are the exact weapons protected under the Constitution. The Musket was once the Founders, choice weapon of War, find out more from http://www.thebiblicalconstitution.com and read the recent blog: “WEAPONS OF WAR” are the primary weapons protected by the Second Amendment.

Russell Boersma

The AR-15 is NOT a common use weapon.The gun humpers get it wrong again.


Huh. I could have sworn that it would make more sense to ask gun enthusiasts which guns they commonly use, rather than depend on the assertions of people who are committed to the idea that guns should be banned!


Bring it on, Joey. If you’re feeling froggy, jump.

Wild Bill

AJ, This fellow, Russel Boresme, is just another under achieving troll. He will never have the money or fortitude to meet you in person. He will hide behind the internet his entire miserable life using words to anger others. That will be his only delight in life.


As if a goat humper like you would know.


It’s the most common weapon in my safe…are you scared, bro?..

Wild Bill

Boersma, If you are not a gun humper, then how would you know? Does the Soros machine pay well?


Said the moron who NEVER fired one.

Russell Boersma

The AR-15 is not a “common use” weapon….Unless you plan on doing a mass shooting.


You don’t have a clue what you are talking about.

The AR-15 is a common rifle for target shooting, for hunting vermin, and for self defense. Indeed, millions are owned for these purposes, yet the number of these used for mass shootings over the years is only in the tens.

Mass shootings themselves (as the FBI counts them) are very rare.


Mass murders have been committed with bolt-action rifles, shotguns, lever-action rifles, and knives.

Additionally, you’re more likely to be murdered with a blunt weapon than ANY sort of rifle.


honestly a hand gun is probably a more effective weapon for murdering people in crowds. so you know they will definitely go after those semi auto hand guns next.. which are basically most hand guns..


Defending liberty, my community, or my family may require “mass shooting”. Having the ability to win is the sole purpose of the second amendment.

Carlys Peters

I served in two wars Vietnam and Iraq and you say that it’s not our right to own guns but it’s alright for crooks to own the guns I fought for the right to defend myself and my country against all enemy that includes out side or inside this country

Wild Bill

What is dangerous and unusual (We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of “dangerous and unusual weapons.” See 4 Blackstone 148-149 from the court’s decision above) about an AR 15/16 modern sporting rifle platform? The modern sporting rifle (MSR) is an inanimate object, like my hammer, my baseball bat, and my rock. They do nothing of their own volition. Nor is the MSR unusual. It has been around for more than half of a century and it is now the most popularly owned rifle in America. The court is wrong about magazine… Read more »

RM Molon Labe

“The historical reality of the Second Amendments
protection of the right to keep and bear arms is not that it protects the right
to shoot deer. It protects the right to shoot tyrants, and it protects the right
to shoot at them effectively, with the same instruments they would use upon us.”
–Judge Andrew Napolitano….They are TYRANTS…Molon Labe


4 th circuit traitors to the Constitution. Move to UK if you dont like it.

Joe Owens

How bout we just kill aholes like you.


are you one of those “peaceful” protesters?

Wild Bill

Owens, Ok, now, whom are we killing the poster named eric or the 4th Cir. Judges? I don’t want to get a thing like that wrong. LOL


Yeah Joe Owens which is it. I am always ready. Unlike my democrat brother.
So I am so conservative that the Tea party members are liberals