By 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.
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.
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