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

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    RufusT1951DougSFC Richard Henry, RetPeter Karrsmitch Recent comment authors
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    RufusT1951
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    RufusT1951

    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… Read more »

    Doug
    Guest
    Doug

    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.

    smitch
    Guest
    smitch

    Come TAKE THEM! “FROM MY COLD DEAD HANDS” We all know!

    Alan
    Guest
    Alan

    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.

    AJ
    Guest
    AJ

    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.

    Mike
    Guest
    Mike

    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.

    Peter Karr
    Guest
    Peter Karr

    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… Read more »

    Alan
    Guest
    Alan

    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… Read more »

    Dave from San Antonio
    Guest
    Dave from San Antonio

    “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).

    Alan
    Guest
    Alan

    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.… Read more »

    Barry Hirsh
    Guest
    Barry Hirsh

    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,… Read more »

    KUETSA
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    KUETSA

    “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… Read more »

    SFC Richard Henry, Ret
    Guest
    SFC Richard Henry, Ret

    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… Read more »

    Panhead
    Guest
    Panhead

    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 !!!!

    Alan
    Guest
    Alan

    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.

    xqqme
    Guest
    xqqme

    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.

    joe stang
    Guest
    joe stang

    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.

    FB
    Guest
    FB

    The lower courts will always defy the constitution.

    VT Patriot
    Guest
    VT Patriot

    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.

    Wzrd
    Guest
    Wzrd

    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.

    Bob M.
    Guest
    Bob M.

    The government arbitrating for the government. Separation of powers is flimsy at best.

    SK
    Guest
    SK

    I guess they will just have to come and take them then. Ha!!

    Dasraa
    Guest
    Dasraa

    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!

    revjen45
    Guest
    revjen45

    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.”

    Macofjack
    Guest
    Macofjack

    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!

    Brian Suddeth
    Guest
    Brian Suddeth

    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.

    RM Molon Labe
    Guest
    RM Molon Labe

      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… Read more »

    Donald Mabe
    Guest
    Donald Mabe

    Let those judges come and take them.

    VonZorch
    Guest
    VonZorch

    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

    Ray
    Guest
    Ray

    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.

    TONY
    Guest
    TONY

    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.

    Alan
    Guest
    Alan

    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.

    Migo
    Guest
    Migo

    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 .

    Enkidu
    Guest
    Enkidu

    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,… Read more »

    Nate
    Guest
    Nate

    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.

    KeK
    Guest
    KeK

    Shadilay, my friend; Shadilay