FYI , AR-15 Rifles Are No Longer Included in Second Amendment

By Jeff Knox

pile of ar15 rifles
FYI , AR-15 Rifles Are No Longer Included in Second Amendment
Jeff Knox
Jeff Knox

Buckeye, AZ –-(Ammoland.com)- By now you've probably heard about the Federal Court of Appeals for the 4th Circuit's horrible anti-rights decision declaring that so-called “assault weapons” and “high-capacity” magazines are not protected by the Second Amendment.

But have you heard how they reached this ridiculous conclusion?

The case, Kolbe v. Hogan, was a challenge to Maryland's oppressive restrictions on semi-auto rifles and magazines with a capacity of more than ten rounds.  The challengers lost the first round, when a judge ruled that the law served a valid government interest and was not enough of a burden on the right to arms to be considered unconstitutional.  The case then went to a 3-judge panel of the 4th Circuit, which reversed the District Court decision, declaring that just proving a government interest wasn't enough, and that “strict scrutiny” should have been applied.  The panel’s finding meant that the government must prove that the state's interest in the law is “compelling,” and must further show that the law is tailored to be as narrow as possible, and effective at advancing the state's compelling objective.  They remanded the case back to the District Court for reconsideration.

Unfortunately that good decision was set aside when a majority of the judges of the 4th Circuit Court decided they wanted to hear the case en banc, meaning a hearing with all of the court's judges participating.

The en banc hearing was held in May of 2016, but a ruling didn't come down until February of 2017 – over 280 days later – and the decision was an outrageous one.  Not only did the majority reject the strict scrutiny ruling of their own 3-judge panel, they declared that the Second Amendment didn't apply at all.  In an amazing display of judicial gymnastics, the majority took a short comment from Justice Scalia's decision in the landmark Heller case, and spun it into a declaration that military-looking semi-auto's in general, and AR-15 style rifles in particular, are not protected as “arms” under the Second Amendment.

Justice Scalia must be spinning in his grave.

The Second Amendment states: “A well-regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed.”

In his Second Amendment analysis in the Heller decision, Justice Scalia included this minor discussion:

“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.'  We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of ‘dangerous and unusual weapons.’  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.” (citations omitted)

Now look at how the 4th Circuit abused part of that paragraph:

“We conclude … that the banned assault weapons and large-capacity magazines are not protected by the second amendment.  That is, we are convinced that [they] 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.” (citations omitted, emphasis in original)

Wait… What?  That's not what Scalia said.  He raised a sideways reference to “if” “M-16 rifles and the like” can be banned.  He included this as a hedge against any claim that the Heller decision, by itself, invalidates the NFA, but he most certainly did not proclaim M-16s and other military weapons to be beyond the scope of the Second Amendment.  He was, in fact, making a point that weapons that are commonly owned by “the people” are what the Second Amendment most clearly does cover, and AR15-pattern rifles are the most popular, and one of the most common rifles in the country.

AR15 Black Rifle Assault Weapon
AR15-pattern rifles are the most popular, and one of the most common rifles in the country.

This case will undoubtedly be appealed to the Supreme Court, where it would be very surprising if even the most rabid anti-Second Amendment justices didn’t slap down the 4th for their arrogance and distortion.  While Justices Ginsburg, Breyer, Sotomayor, and Kagan would probably agree with the District Court’s decision to apply intermediate scrutiny and rule the law to be constitutional, even they do not appreciate lower courts intentionally misrepresenting or abusing the high court's decisions.  The judges of the 4th Circuit might have done well to review the Supreme Court’s smack-down of the Massachusetts Supreme Judicial Court in Caetano v. Massachusetts.  The opening paragraph of that unanimous decision from SCOTUS reads:

“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, and that this ‘Second Amendment right is fully applicable to the States,’ McDonald v. Chicago.” (citations omitted)

While the 4 “liberal” justices would almost certainly opt for intermediate scrutiny, and allow Maryland's bans to stand, Thomas and Alito are virtually certain go with strict scrutiny.  Roberts and Kennedy could go either way, but without Gorsuch on the Court, the decision would favor Maryland.

When President Trump talks about “draining the swamp,” the judiciary certainly qualifies as a shovel-ready project.  That job will take longer and be more difficult than cleaning up the federal bureaucracy, but it’s a job that needs to be done, and it starts with confirming Judge Neil Gorsuch as the next Justice on the Supreme Court.  Call your senators.

Note: Adam Kraut, attorney and candidate for the NRA Board of Directors, has an excellent video summary of the case posted on YouTube.

About:
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

  • 36 thoughts on “FYI , AR-15 Rifles Are No Longer Included in Second Amendment

    1. If we loose the 2nd Amendment we can say goodbye to the other 9 amendments in the “Bill of Rights”!!! Also, the 2nd Amendment states “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear arms, shall not be infringed.” Let’s see here, “A well regulated Militia, the people, being necessary to the security of a free State, the people are charged with the security of the country against ALL enemies, foreign and domestic, especially domestic because when OUR government becomes destructive of OUR rights to “Life, Liberty and the pursuit of happiness”, we the people, the MILITIA, have the right to alter or to abolish said government by whatever means necessary and as the MILITIA, we the people are ENTITLED to the same weapons of war and defense as the regular military which, and this is going to frost the anti-gunners minds, also would include full automatic weapons. Sorry anti-gunners, but the Constitution says what it means and means what it says. “Shall NOT be infringed”!!!!!!!

    2. None of your Constitutional arguments means a bit of difference to a past president who acts in defiance of the Constitution, a congress who passes legislation so they learn what it is or a judiciary who legislates from the bench based on popular trends and social justice. If you elect bad politicians you get bad judges who make bad decisions.

    3. Re The Court’s illadvised comments, observations concerning short barreled shotguns and Miller v. U. S., sad thing that nobody was available to instruct the court in U.S. MIlitary History. Also, one finds it strange that The Court would hear arguments in a case where only the government’s side was aired. Today, the accused has the right to legal counsel, which while it sometimes does leave something to be desired, is presumably better than nothing. Of course, such considerations might not apply to The Court, that being the U.S.S.C.

      1. You should read the history of the ruling. Basically Miller was too poor to travel to the court on the day of the hearing so they went ahead without him and ruled in favor of the government.

        1. I had read that Miller had disappeared by the time the case got to the Supreme Court and that his counsel therefore didn’t appear either. Still, the Court shouldn’t have just conjured up a ruling without making not of the absence of Miller.

        2. Actually I had heard that between the time that the Supreme Court agreed to hear the case, and the time they actually heard the case, that Miller was killed. (He was a bootlegger). And Miller’s attorney wasn’t interested in making any landmark legal rulings concerning the 2nd Amendment, he was only interested in getting his client off. But Miller was dead. And that’s why the Supreme Court, in the Miller case said, “In the absence of any evidence showing these guns to be protected…” And that’s why there was an absence of evidence: Miller’s attorney didn’t show up to make his case. Oh, and that Supreme Court quote is not an exact quote, I’m slightly paraphrasing. But that’s the gist of it.

    4. In case my earlier comment went lost, the following might be of interest. While at the moment, gun rights seem to be on the chopping block, for those who aren’t interested or who don’t care, stop right here and consider. If for some reason, you mistakenly think that YOUR RIGHTS, things that concern you will not at some point gain the disapproval of those oh so concerned types who of course for your own good or better yet, for the undefined good of “others” would find curbing your rights a necessity, a noble cause, think again. Your day will likely come too, and quite possibly surprisingly soon,though when the awakening comes to pass, it might well be to late.

    5. “The tank, the B-52, the fighter-bomber, the state-controlled police and military are the weapons of dictatorship. The rifle is the weapon of democracy. If guns are outlawed, only the government will have guns. Only the police, the secret police, the military. The hired servants of our rulers. Only the government and a few outlaws. I intend to be among the outlaws.”
      — Edward Abbey The Right to Arms (New York, 1979).

    6. The ongoing legislative attacks and judicial attacks too on the basic freedoms/rights/libertiesof the citizenry, horrific as they are, while at the moment concentrated on gunfights, will not stop there. Pay close attention to this sad fact, those of you who aren’t shooters, hunters, who couldn’t care less about those awful things, as your rights might soon be on the chopping block. Remember the following sad song if you will. First they came for the communists. I said nothing, as I wasn’t a communist. Then they came for the Jews, same story. Next they came for the trade unionists, same story. Shortening this sad tale a bit, when they came for me, alas, there was nobody left to complain or resist.

    7. See: U.S. v. Miller (1939)

      “In the absence of any evidence tending to show that possession or use of a ‘shotgun having a barrel of less than eighteen inches in length’ at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment, or that its use could contribute to the common defense. Aymette v. State, 2 Humphreys (Tenn.) 154, 158. . . . These show plainly enough that the Militia comprised all males physically capable of acting in concert for the common defense. . . . when called for service these men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time.”

      Okay, let’s review:

      a) “some reasonable relationship to the preservation or efficiency of a well-regulated militia”
      Check.
      b) “any part of the ordinary military equipment”
      Check.
      c) “its use could contribute to the common defense”
      Check.
      d) “in common use”
      Check

      Since so-called “assault weapons” meet each of these criteria, THEY ARE WITHIN THE AMBIT OF SECOND AMENDMENT PROTECTION.

    8. “The Second Amendment states: “A well-regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed.””

      YEA-YEA – BUT NO AR15 TYPE “ASSAULT WEAPONS-OF-WAR THAT HAVE NO PLACE ON OUR STREETS” . . . . and no magazines over 10 bullets.

      A well-regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed, except in the event that a political party decides to restrict all effective militia capable firearms under the guise of public safety, and complicit federal justices are in place to uphold said laws, and they feel they can get away with it.

      A well regulated and controlled citizenry, being necessary to the security of the progressive state, the right of the people to keep and bear arms, is not an unlimited right, and so may be registered, regulated, limited, and controlled at the discretion of the state.

      AS LONG AS I CAN KILL A DEER NOW AND THEN – I’M OK – AND YEA – I DON’T NEED 10 BULLETS TO KILL A DEER!
      The second amendment is now the right to kill a deer (at least in NY State), and as such, citizens being limited by state law to the minimum standard of firearm acceptable to kill a deer is in compliance with second amendment constitutional law.

      Progressives feel very powerful as they force their will upon the American citizenry.
      10th Amendment:
      The powers not delegated to the United States by the Constitution, NOR PROHIBITED BY IT TO THE STATES, are reserved to the states respectively, or to the people.

      The constitution “PROHIBITS” these state laws!
      They are attempting to FORCE the REINTERPRETATION that “The right of the PEOPLE to keep AND BEAR arms, SHALL NOT BE INFRINGED” actually means that Americans have the CONSTITUTIONAL RIGHT to the same limited, low capacity sporting arms that are “ALLOWED” in other parts of the world where there is NO second amendment!
      To American citizens that do not own guns, have no want to own guns, and know NOTHING about guns, THIS SEEMS REASONABLE – (and they make up more than 50% of voters)
      Gun owners see the reality of “reasonable gun control” – The second amendment being a right to a “CAPABILITY” – This so-called REASONABLE gun control TAKES THE CAPABILITY and tips the balance of power (that the second amendment is) firmly to government advantage. THIS IS THEIR ONLY GOAL!

      You would think that they would look at the result in NY and CT, where these laws were attempted to be forced on American GUN OWNERS. Connecticut’s law went into effect four months before NY. If you like your AR15, you can keep your AR!5, JUST REGISTER IT TO OUR CONFISCA . . . I MEAN REGISTRATION LIST. Numerous registration papers arrived just after Jan 1 – state police said – NO GOOD. They had a list of names – and there was belligerent talk of FORCIBLE CONFISCATION.

      A great man wrote this letter to the CT state police.
      http://sipseystreetirregulars.blogspot.com/2014/02/an-open-letter-to-men-and-women-of.html
      A very creepy video was posted of the home addresses of politicians that passed the law.
      https://www.youtube.com/watch?v=G6ICoHUFgkA

      Politicians were sacred and demanded 24-7 state police protection – state police said NO.
      There was no more talk of confiscation.
      NY’s went into effect soon after – not a word was said.
      CT has @ 8% compliance rate – NY – 4%
      Armed standoff.
      Yet they keep pushing.
      The second amendment was put in place to enable the capability of American citizens to defend their freedoms IN THIS VERY SITUATION, against THIS PROGRESSIVE DEMOCRAT POLITICAL PARTY.
      NO PART OF DEFENDING OUR FREEDOMS INCLUDES SURRENDERING OUR FIREARMS OR MAGAZINE CAPACITIES.
      NON-COMPLIANCE IS THE DUTY OF EVERY AMERICAN!

      1. After reading several comments on this subject, I must agree with you whole heartedly. The politicians are afraid of losing thier powers to contol the average person. In Texas there is no way to know who has and weapon on thier person at any given time. I proudly served for 12 years and will never give up my right to keep and bear arms to ensure the protection of myself and family. You never know when that “DEER” may show its ugly head.
        God Blessed this nation for a reason, it was for peole that knew what was right and willing to fight to keep it right.

    9. Every senetor every congressman every judge takes an oath to uphold protect and honor the constitution of the UNITED STATES and State they represent !!! As its written ! They don’t take an oath to change it or reinterpret it ! This has to stop I now use my voting power VERY CARFULY !!!!

    10. How about Springfield Rifles, Garand Rifles,30-40 Krag Rifles, to mention just a few, all of which were, at one time or another the U.S. service Rifle.

    11. The “in common use” provision will be the supporting phrase when the next generations of firearms are invented. If only those in common use are protected by the Second Amendment, then any new design, function, or feature can be banned simply because, as new-fangled inventions, they aren’t yet in common use.

    12. Quemadmoe um gladis nemeinum occodit, olcidentis telum est. the world rich will use all there wealth for a one world gov. which they can control. US CONT and all doc of freedom must be destroyed. I am glad I am old but my last breath will be in the defense of LIBERTY.

    13. So is the first also ‘invalid’ by this thinking? Free speech at that time was someone standing on a street corner and espousing his beliefs. He didn’t have the internet, the telephone, video cameras or any of the devices we have today. Folowing this line of reasoning, no-one should be allowed to express an opinion other than on a street corner. I should be arrested for posting this. After all, I’m using the internet which was never envisioned by our Founding Fathers.

      1. Unfortunately it appears logical & rational arguments will get you nowhere in the current American judicial system. Especially when it comes to arms. & especially in MD & the 4th.

    14. The 2A, indeed protects arms used in war and peace! The second phrase of 2A is NOT dependent on the first phrase! It is just the reverse! In 2A ‘ the people’ isthe same as that phrase used in the rest of the constitution and bill of rights! It does not change because the 2A is about arms of ALL types!

      1. 1) The People ARE the militia.
        2) The fyrd is a constitutional imperative.
        Not only does 2A codify the preexisting right of free people to be armed, but states that a properly instructed and equipped Yeomanry at Arms is “necessary for the security of a free state.”

    15. Biggest problem I see is the use of the term ‘assault weapon’ AGAIN. Maybe someone should make the law makers dit down and wright out ‘The AR15 is not an assault weapon!’ one million times. They are so stupid they still won’t get it, but at least there hand will be so knotted up they won’t be able to write any insane rulings for a while!

    16. Bad judicial rulings are lining up like dominoes. This one is so egregious that it may start the line tumbling. Keep fighting. What the story lacks is a “GoFundMe” or similar link to donate to the legal effort. Keep thies great stories coming Jeff! Well written.

    17.  
      One of the greatest evils are those who take an oath to govern by “delegated
      powers” but use it to take from others what they keep for themselves.
      “A
      Government that does not trust its law abiding citizens to keep and bear arms,
      is itself, unworthy of trust.” –James Madison, chief wordsmith of the
      Constitution
      “Any government that would attempt to disarm its people is
      despotic; and any people that would submit to it deserve to be slaves.”–
      Stephen F. Austin, 1835
      “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
      Molon Labe

      1. Congress have no power to disarm the militia. Their swords, and every other terrible implement of the soldier, are the birth-right of an American
        Tench Coxe, Pennsylvania Gazette, February 20, 1788

    18. Trump needs to get rid of the 4th Circuit. I won a case
      for CCW in Maryland and the State appealed it to the
      4th and they stood with the State.

    19. PLEASE REVIEW IN DETAIL THE HELLER DECISION , I BELIEVE THE 4th CIRCUIT COURT OVER LOOKED THE PART WHERE JUSTICE SCALIA WROTE THAT THE AR-15 WAS TO BE CONSIDERED TO BE THE FIREARM/RIFLE OF THE DAY AS WAS THE MUSKET WAS AT THE TIME OF THE WRITING OF THE 2nd AMENDMENT AND THAT PROGRESS AND ADVANCE OF FIREARMS TECHNOLOGY ARE TO BE CONSIDERED. AFTER ALL A WELL ARMED MILITIA SHOULD RULE OUT ANY OF THESE SO CALLED ASSAULT WEAPONS BANS.

      1. Seems like the Court “overlooked” all manner of important, laid concerns in arriving at their decision. additionally, and perhaps most important is the following. given the issues at hand, how did they manage to view this case under anything no less than STRICT SCRUTINY.

    20. Then it apply to all Military and Police dept also . They just may it illegal for everyone , the 2 Amendment Right can not be changed at all its the only safe guard the people have to protect this Country . No government shall keep bulling their people and stealing so much from the people’s , and abusing the power by hiding behind the government office that’s why the 2 Amendment Rights is the safe guard no judge or government could change it or it mean prison for them by taking to change it .

    21. Half way through the article Caetano v. Massachusetts immediately came to my mind. The per curium holding has already discounted the Fourth Circuit’s construction of Heller. Under Caetano, the Supreme Court would have undoubtedly held that AR 15’s are protected by the Second Amendment on the same grounds as Heller held for pistols, in that they are the most popular rifle in use at this time, and there is nothing unusual about them. If SCOTUS hears this case, i am certain it will be overruled with the same rebuking that was bestowed upon the Massachusetts Supreme Court. In other words, the Fourth Circuit will get an a$$ chewing.

    22. Then those judges should be forced to go back to colonial times in the commission of their jobs. Come to court with powdered wigs, ride in horse drawn carriages, have no air conditioned offices and ABSOLUTELY NO MODERN COMMUNICATION OR OFFICE DEVICES. Times and needs change together and we as a people change with them. Firearms have progressed because of needs, just like courtrooms and transportation, and they should be protected as originally set forth by the founding Fathers.

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