The Fourth Circuit’s Evisceration of the Second Amendment
This week, the Fourth Circuit Court of Appeals, sitting en banc, issued a decision upholding a Maryland ban on “the AR-15 and other military-style rifles and shotguns” as well as “detachable large-capacity magazines.” The opinion ignores the basic reasoning of the Supreme Court case that upheld Second Amendment rights: D.C. v. Heller. The Fourth Circuit’s opinion opens with this rhetorical flourish:
On the morning of December 14, 2012, in Newtown, Connecticut, a gunman used an AR 15-type Bushmaster rifle and detachable thirty-round magazines to murder twenty first-graders and six adults in the Sandy Hook Elementary School. Two additional adults were injured by gunfire, and just twelve children in the two targeted classrooms were not shot. Nine terrified children ran from one of the classrooms when the gunman paused to reload, while two youngsters successfully hid in a restroom. Another child was the other classroom’s sole survivor. In all, the gunman fired at least 155 rounds of ammunition within five minutes, shooting each of his victims multiple times.
One could easily list atrocities committed with pistols as well. Indeed, research shows that mass shootings are usually committed with pistols:
[Researchers] found that the typical weapon used is a pistol, not an “assault weapon” like the semi-automatic AR-15 rifle. Assault weapons were used in 24.6 percent of mass shootings, handguns in 47.9 percent.
But the court’s dramatic opening is not designed to further constitutional analysis. It is there to promote a political agenda.
In its legal analysis, the opinion seizes on this single sentence from Heller:
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.
Divorcing that sentence from all context, the majority uses it to repeatedly assert that there is no right to own a weapon that — from the rarefied perspective of a federal judge’s chambers — might be deemed to be “most useful in military service.” And with a little hocus-pocus, the court decides that AR-15s are “most useful in military service” and are like M-16s. Here is a part of the judges’ totally out-of-touch reasoning, which demonstrates why lefty judges are not particularly suited to writing about firearms:
[S]emiautomatic weapons can be fired at rates of 300 to 500 rounds per minute, making them virtually indistinguishable in practical effect from machineguns.
Yuh-huh. Sure they can. As David French observes:
The word “rates” does a lot of work in that sentence. Yes, a person can pull the trigger very quickly on a semi-auto rifle (of any type) for a very short time. No, you cannot send 300 to 500 rounds downrange in one minute. You can’t even do it with an M-16 in burst mode.
In any event, limiting the analysis to what is “most useful in military service” simply isn’t what Justice Scalia said in Heller — if you look at the sentence in context:
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.” [citations omitted]
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.
AR-15s are hardly “dangerous and unusual” — because the word “and” means they have to be unusual, and they aren’t unusual at all. They are the most popular firearms in the United States, which makes it a little difficult to call them “unusual.” Similarly, magazines holding more than 10 rounds are exceedingly common, with the dissent stating that “there are more than 75 million such magazines owned by [American citizens] in the United States.” But the majority cheerfully admits that “we simply de-emphasize the term ‘dangerous and unusual'” in favor of the “most useful in military service” language that they like better — ignoring the fact that the latter phrase is a function of the former.
It’s rare that a court so brazenly announces that it is “de-emphasizing” a central part of a majority Supreme Court opinion. The dissent aptly states what is at stake:
Today the majority holds that the Government can take semiautomatic rifles away from law-abiding American citizens. In South Carolina, North Carolina, Virginia, West Virginia and Maryland, the Government can now tell you that you cannot hunt with these rifles. The Government can tell you that you cannot shoot at targets with them. And, most importantly, the Government can tell you that you cannot use them to defend yourself and your family in your home. In concluding that the Second Amendment does not even apply, the majority has gone to greater lengths than any other court to eviscerate the constitutionally guaranteed right to keep and bear arms.
Indeed.
I’d wager this case is likely to be taken up by the Supreme Court, and with a Justice Neil Gorsuch on the Court, I would predict this ruling will be reversed, as it should be.
It’s a stark reminder that there are some very, very good things that result from the election of one Donald J. Trump.
[Cross-posted at RedState and The Jury Talks Back.]
By special request from NJRob.
Patterico (281332) — 2/24/2017 @ 6:16 amThanks, we expect this foolishness from king and Doug wilder’s law partner Gregory, but wilkerson going along with this, trailer was the holdout
narciso (d1f714) — 2/24/2017 @ 6:28 amI’d wager this case is likely to be taken up by the Supreme Court, and with a Justice Neil Gorsuch on the Court, I would predict this ruling will be reversed, as it should be.
It’s a stark reminder that there are some very, very good things that result from the election of one Donald J. Trump.
Yes.
Nonetheless, the Courts are the last redoubt. The places to win the battles are Congress and the state legislatures.
nk (dbc370) — 2/24/2017 @ 6:39 amMore reason to fast track Gorsuch’s hearing and confirmation.
On the other hand, this week will be a good one for ammo and rifle sales.
Sean (41ed1e) — 2/24/2017 @ 6:43 amThe problem is crimethink is endemic in the nutmeg state, Maryland, people’s republic, its Canadian adjunct
narciso (f3d985) — 2/24/2017 @ 6:46 amThank you for this.
NJRob (43d957) — 2/24/2017 @ 6:55 amAnd cases where Courts make policy like this, directly against the text of the Constitution and against decided law, is exactly why Judges deserve to be condemned regularly in public.
Lincoln condemned Taney, rightfully.
Steven Malynn (d29fc3) — 2/24/2017 @ 6:57 amThe Frisco 3 used just as spurious logic and reasoning.
narciso (121107) — 2/24/2017 @ 7:01 amThank you again for mentioning my request. Wanted to show my appreciation before I read the article and now I want to reiterate it again.
Watching our rights constantly eroded by the government with a willing accomplice in the media and the state run education system, this is why I originally became politically active. It’s also why I wanted to become a lawyer before I ended up in finance. Cases like this make me remember why I disliked law school so much. Studying courts that completely ignore the law to make their own rulings and then treating that ruling like it is law.
We need to return to civics in education and a study of the law, not just legal briefs and interpretations.
Thank you.
NJRob (43d957) — 2/24/2017 @ 7:04 amWhat’s this? Both Patterico and nk allowing that Trump isn’t all bad. Who says leopards can’t change their spots.
Oh yeah, the 4th’s ruling is pure hocus pocus. Nothing but ruthless pandering to the totalitarion state’s political goal of disarming the population. Let them take your guns and you have little ability to limit what they take next.
Know the best way to tell a free man from a slave? Free men may go about armed, while arms are forbidden to slaves.
ropelight (2df382) — 2/24/2017 @ 7:11 amGoudy: Now is it not true that you sprang up on old man Wharton and his two sons with a deadly, six shot revolver in your hand?
papertiger (c8116c) — 2/24/2017 @ 7:12 amCogburn: I always try to be ready.
Goudy: Was this revolver loaded and cocked?
Cogburn: Well, a gun that’s unloaded and cocked ain’t good for nothin’.
The more black people a place has, the more gun control it has; and I suspect that there’s a multiplier effect if it also has a significant percentage of Italians.
nk (dbc370) — 2/24/2017 @ 7:12 amThe fool’s obviously never seen Jerry Miculek…
J.P. (9e0433) — 2/24/2017 @ 7:17 amropelight, both Patterico and I have always given Trump credit when credit was due. Always. I won’t mention any names, but it’s some Trump supporters who snivel when the plum lolly he hands them is not their favorite brand. 😉
nk (dbc370) — 2/24/2017 @ 7:17 amExplain Connecticut then, no its,just sloppy thinking from such toxic vineyards came Griswold and kelo.
narciso (121107) — 2/24/2017 @ 7:18 amBefore the Constitutional Convention in 1787, the power of judicial review had been exercised in a number of states.
At least seven of the delegates to the Constitutional Convention, including Alexander Hamilton and Edmund Randolph, had personal experience with judicial review because they had been lawyers or judges in these state court cases involving judicial review.
The concept of judicial review therefore was familiar to the framers and to the public before the Constitutional Convention.
They purposefully didn’t include it as a power invested in the Supreme Court.
They did include it as a power of the normal citizen when convened as a jury.
papertiger (c8116c) — 2/24/2017 @ 7:23 ami love the posts where mr. trump’s given credit and i abjure the posts what carp and wheedle
looks like at least some of the rug-piddling republicans are starting to nut up
happyfeet (28a91b) — 2/24/2017 @ 7:25 amMagazine capacity, JP.
nk (dbc370) — 2/24/2017 @ 7:31 amIt’s like the baldy study,,they couldn’t attack the death penalty outright as in furman, so they went after implementation.
narciso (121107) — 2/24/2017 @ 7:35 amBaldus, they failed there, so they went after the means.
narciso (121107) — 2/24/2017 @ 7:37 amDid the 4th Circuit even pretend to consider the 2nd Amendment in their decision or was it just pure bastardization of Heller and other court decisions?
NJRob (43d957) — 2/24/2017 @ 7:38 amNo, that s over a hundred years old.
narciso (121107) — 2/24/2017 @ 7:40 am@nk,
“The more black people a place has, the more gun control it has”
Which tells me that neither the (mostly white) Liberal Intellectual Progressive class, nor their (often Black) political flunkies trust the inner city Blacks. And why would they? Some day the inner city Blacks are going to wake up to how thoroughly their Liberal ‘Friends’ and political ‘Leaders’ (parasites) like Sharpton have screwed them, and then Hell is going to go for a walk with the sleeves rolled up.
C. S. P. Schofield (99bd37) — 2/24/2017 @ 7:53 amWhen it started out, with New York’s Sullivan Law, the Dark Races included everyone not Northern European. Italians, specifically, in New York.
nk (dbc370) — 2/24/2017 @ 7:59 amYes the camorra,appreciated that law, when it came to prohibition
narciso (121107) — 2/24/2017 @ 8:01 amWhat a ridiculous thing to say. We don’t need a reality TV game-show host in the Oval Office to have constitutionalist judges nominated.
Real conservatives made the pick for him. Gorsuch is a rare (unique?) example of Trump acknowledging his total ignorance and following the instructions of somebody who actually knows something. Why did it happen? Because Trump doesn’t even understand what the Supreme Court does, much less understand what a constitutionalist judicial philosophy is.
Dave (711345) — 2/24/2017 @ 8:22 amSome 20% of voters said that their most important issue was the courts, and Trump won those voters by double digits (I’ve heard by 15 or even 20 points). From a stance of pure self-preservation, he has a reason to make them (us?) very happy.
He also seems to be doing what very busy executive types do: outsourcing an area in which he has next to no expertise to the people he thinks have the most expertise. I think Leonard Leo’s on some sort of leave from Fed Soc to help the Trump Administration with judicial picks. That’s the stuff that we would have gotten from a Cruz administration, so it’s a pleasant surprise to see it in Trump’s White House.
bridget (1c91a9) — 2/24/2017 @ 8:24 amWithout necessarily defending Trump (see my previous comment – my view is similar, but less uncharitable, than yours), let me say this:
The vast majority of lawyers and judges are much more liberal than most Americans, and “moderate” judicial opinions tend to be much more left-leaning than the ideology of moderate Americans.
You ask a centre-right American (not the opinion-makers in the news) about their thoughts on various judicial opinions, how judges should rule, and how cases should come out, and it sounds like Scalia or Alito. Hang around with non-lawyer, non-political types, and they act, speak, and think a lot like Trump does.
Rather than throw moderate-liberal-centre-right-who-knows-what Trump under the bus over this, I want to take the opportunity to remind Americans how very, very liberal the Robed Ones are – so liberal that the aforementioned moderate President is appointing Scalia-clones up and down the judiciary.
bridget (1c91a9) — 2/24/2017 @ 8:30 amHillary sucked no less than Trump. ’66 VW mini-bus versus ’73 Ford Pinto. But with Gorsuch, the Pinto took us where we wanted to go. The ’66 VW mini-bus would not have.
nk (dbc370) — 2/24/2017 @ 8:37 amExactly Bridget personnel is policy, red aueen was going to have no one same advising her.
narciso (7adfd6) — 2/24/2017 @ 8:39 am“The more black people a place has, the more gun control it has”
Mississippi has the highest percentage of blacks of any state and it has constitutional carry. It is much closer to the mark to note states where pols support drug gangs as a matter of reciprocity seek to render the gangs’ prey defenseless. The Deep Blue metropolitan sewers are prime examples.
Rick Ballard (da143d) — 2/24/2017 @ 8:40 amI think the Fascist-Progressive pattern is clear: Get the courts to go-along with the banning of “military-style” firearms on emotional grounds.
Once that is accomplished, do a 180 and begin claiming the 2nd Amendment is all about “military-style” firearms – you can’t have a Militia without everyone having their military-style firearms, don’t-cha-know! – and go after “sporting firearms” since they have no military/militia usefulness.
…but, so sorry, all those military-style firearms are banned…stare decisis and all that…tut-tut.
MJN1957 (6f981a) — 2/24/2017 @ 8:41 amYes that’s the path taken with bungerford and dunblane in one instance and port Arthur instance instance
narciso (7adfd6) — 2/24/2017 @ 8:46 am29. So a fellow traveler will move too fast, rear-end the Pinto and blow the whole thing up?
urbanleftbehind (5eecdb) — 2/24/2017 @ 8:58 amYes block that metaphor on the thirty yard line,
narciso (d1f714) — 2/24/2017 @ 9:03 amI told you they were standing on us v. Miller.
narciso (d1f714) — 2/24/2017 @ 9:07 amReally I thought the Robart decision was a thin chalupa
narciso (d1f714) — 2/24/2017 @ 9:13 amOh, yeah, the damn thing could blow up at any time and take the whole world with it, and every time it manages to take you to the grocery store and back safely is an achievement to write about in the papers. It’s the perfect metaphor for Trump.
nk (dbc370) — 2/24/2017 @ 9:22 amIts a shame scalia isn’t around but. Justice Thomas would slice this decision up like fine churasco, (flank steak)
narciso (d1f714) — 2/24/2017 @ 9:30 amHonest-to-God question from someone unfamiliar with US firearms regulations, and how the US military generally classifies its standard issue firearms:
Couldn’t bolt-action battle rifles like SMLE 303s and Springfields fall into the category of “military-style rifles”… with “detachable large-capacity magazines”?
JP (f1742c) — 2/24/2017 @ 10:03 amThe fact of the matter is, the Heller decision begged the question of what is common use, an who gets to declare weapons common use or no longer in common use.
Sammy Finkelman (b32091) — 2/24/2017 @ 10:11 amIt’s a little like “cruel and unusual” punishment.
Sammy Finkelman (b32091) — 2/24/2017 @ 10:13 amNo sammeh, as usual you miss the point.
narciso (d1f714) — 2/24/2017 @ 10:19 amThat is an indictment of Scalia and Alito, if true.
They are not supposed to decide cases based on what center-right Americans (god bless them) think should happen, but based on what the law says. If a case gets to the Supreme Court, I’m sorry, but it is silly to suggest that Joe Sixpack’s (no disrespect intended) view of what “should” happen has anything to do with the actual legal question at issue.
To be sure, center-right people are generally going to take a dim view of gun control, and in this particular case, their instincts align with the plain language of the constitution – the 4th Circuit’s decision here looks ludicrous to me.
But popular opinion is not the right way to decide court cases (for instance, polls show a 60-40 split in favor of gay marriage, and I would not oppose it strongly as matter of legislation, but I think the Obergefell decision was wrong).
Regarding the Gorsuch pick, it’s like if you gave Donald Trump a textbook quantum mechanics problem to solve. Knowing nothing, and caring nothing, about quantum physics, Trump – in rare fit of sanity – asks a panel of 20 physics professors to give him the answer. They do the problem (which any senior physics major could solve) and give him a piece of paper with the answer. And then for the next four years his apologists insist he’s a greater physics genius than Newton, Einstein, Heisenberg and Feynman put together…
Dave (711345) — 2/24/2017 @ 10:20 amJP,
The magazines on the SMLE and Springfield were not detachable and had a fixed capacity. The magazines were loaded from the top, either by manually inserting one cartridge at a time or by chargers or stripper clips. I have complete faith that this court could and would, if allowed, extend their ‘military style’ language to include the SMLE and Springfield on their way to banning cross and long bows as well as rocks.
Rick Ballard (da143d) — 2/24/2017 @ 10:37 amOn the other hand, this week will be a good one for ammo and rifle sales.
Sean (41ed1e) — 2/24/2017 @ 6:43 am
You were saying?
nk (dbc370) — 2/24/2017 @ 10:44 am$352.58 out the door (fees and taxes included) at my local gun store. Click for instant quote and enter your zip code to see what it sells for where you are.
nk (dbc370) — 2/24/2017 @ 10:48 amHi Rick,
Thanks for this. My only contention would be that I don’t know if you’re right about the SMLE – magazines can be detached from the rifle and replaced with other loaded magazines if need be.
Or am I misunderstanding the meaning of “detachable” in this instance?
JP (f1742c) — 2/24/2017 @ 10:59 amHey, I learned to drive on that mini-bus (a 1969) – as long as you drove at night, or retrofit an oil cooler to keep the #3 piston cool – it drove forever (just not fast).
Steven Malynn (d29fc3) — 2/24/2017 @ 11:01 amMost popular firearm in American isn’t common use, then what is?
NJRob (43d957) — 2/24/2017 @ 11:07 amIf the state of Maryland makes it illegal to possess a certain kind of firearm, how can it be in common use? Do other states count? If yes, can the federal government make some weapons illegal and take them out of common use? If no, then how do they make most possession of machine guns illegal? do we look at how many are manufactured?
Sammy Finkelman (b32091) — 2/24/2017 @ 11:21 amIt’s a good thing I didn’t do that.
My suggestion – perhaps not as obvious as I thought, unless you are being willfully obstinate – is that your average American has a judicial philosophy that is more in line with Scalia than with Ginsburg or even Kennedy.
You seem determined to be angry. It doesn’t help your #NeverTrump stance, because it turns what could be principled critique of the man into an unprincipled hate-fest.
bridget (1c91a9) — 2/24/2017 @ 11:49 amHa, I had the same exact frustration in law school.
I also agree with Bridget that the legal profession is quite a bit like academia. The center inside is well to the left of the center outside.
Dustin (ba94b2) — 2/24/2017 @ 12:27 pmThe 2nd amendment’s conundrum:
The central purpose in protecting citizens from government, via the little guys being their own military if it was the only way to prevent tyranny, is that we have weapons (that would be effective in a war).
But we can’t have missiles and nukes and grenades in common use.
The courts do not want the 2nd amendment to give us the right to have military weapons like tanks or artillery (even though citizens did own such things in the revolution). But if they neutered the right to own weapons enough, the 2nd amendment’s clearly stated purpose is voided. If, God Forbid, it was needed to protect us from an invader or our own government, fifty million Americans with AR-15s, vehicles, American handyman skills, would be the most potent insurgency in history.
Sammy raises a good point about how arbitrary a’common use’ test is (even though AR-15s are extremely common). If there’s one truth to military technology, it’s that it’s eternally marching forward. While I doubt we’ll see any armed revolutions en masse, if we did it would involve a whole lot of drones today (on both sides).
Dustin (ba94b2) — 2/24/2017 @ 12:35 pm@52- amen.
Leon (feb2a4) — 2/24/2017 @ 1:03 pmAnd when two more conservatives replace Ginsberg and Breyer, we can get rid of all those state laws that infringe on the core 2nd (and 9th) Amendment right of self-defense. If marriage is a fundamental right, regarding which states cannot “discriminate”, then self-defense has got to be at least as important.
Life and liberty trump nearly everything.
Kevin M (25bbee) — 2/24/2017 @ 3:24 pmThe gun confiscation ratchet ticks over a notch or two.
Kevin M (25bbee) — 2/24/2017 @ 4:18 pm@46 nk
Don’t you live in a gun desert?
Pinandpuller (166ee8) — 2/24/2017 @ 9:43 pmThere was nothing angry or hateful in my response to you. Your original post made a claim that:
That may be true, but Donald Trump’s opinions are not based on the law, but how any given question affects him. See whether “non-lawyer, non-political types” agree with Donald Trump on eminent domain.
Regardless, I reject the idea that “non-lawyer, non-political types” have a judicial philosophy bearing any resemblance to Scalia’s or Alito’s.
When you present “non-lawyer, non-political types” with a set of facts, they will decide what they think should happen based on what seems “fair” to them, or based on their own values. If they are “non-lawyer, non-political types” I strongly doubt they are going to base their opinions upon the nuances of the Federal Code, or the last hundred years of settled case-law. How could they, without the legal training and resources required? They will choose the *result* they think is most desirable, regardless of the actual law.
And *that* is precisely the Ginsburg/Breyer/Sotomayor/Kagan approach. It’s just that the liberal justices generally choose a different desired result than center-right Americans.
True conservative judges do not decide cases based on the result they want. They decide based on what the law actually says, where “the law” includes statutes, settled case-law and the Constitution.
Dave (711345) — 2/24/2017 @ 9:55 pmMeanwhile in 2nd Amendment-fearing California:
‘Crime Increasing in California After ‘Prison Reform’ – Jack Dunphy
https://pjmedia.com/trending/2017/02/24/crime-increasing-in-california-after-prison-reform/
Who knew?
Kevin M (25bbee) — 2/25/2017 @ 10:09 amKevin,
It’s just a hard fact that incapacitation of criminals is the best way to reduce crime. The best way to incapacitate them is to incarcerate them for as long as possible. As prison populations go up, crime goes down. As crime goes down, many complain that it’s cruel that we have such packed prisons, because they do not understand the correlation.
A great investment right now is CXW because this reality can be fought by politicians, but it’s still reality. The only real alternative is to create much larger capacities for the mentally ill in state hospitals (something I am a huge fan of).
It might also have something to do with gun control, but I think a lot of the times, places where individual rights are respected are places criminals are less likely to be. Probably a little of both though. Anyone breaking into a house on my street is probably going to get shot after all.
Dustin (ba94b2) — 2/25/2017 @ 10:20 amThe only real alternative is to create much larger capacities for the mentally ill in state hospitals
I actually toured a state hospital back when they were still doing that in CA (1970). It was something out of Dickens. Not a fan.
Kevin M (25bbee) — 2/25/2017 @ 11:08 amYeah I’m not talking about awful conditions like that but even that is more humane than what I see on the streets.
Dustin (ba94b2) — 2/25/2017 @ 11:21 amThey actually went against “Miller”. With enough conservatives sitting on SCOTUS, this could open a can of whoop-ass on gun controllers. Per Miller, a firearm had to have military usage to be protected, and the ruling was that the sawed off shotgun did not qualify (of course, we had a situation where Miller had died waiting on SCOTUS, and there was no proper defense).
Smarty (0bab40) — 2/25/2017 @ 5:31 pm