Appeals court deals a blow to the Second Amendment

  • 23 February 2017
  • NormanL
Appeals court deals a blow to the Second Amendment

The Fourth Circuit Court of Appeals issued a ruling this week that upheld a Maryland gun control law that supposedly prevents dangerous, military style weapons from ending up in private hands. The anti-gun left is happy with the ruling. But for those concerned about Supreme Court precedent and the Second Amendment, the Court's ruling is a blow to the rule of law, and common sense:

In Kolbe, the 10-judge majority concludes that the guns and magazines covered by Maryland's ban are "dangerous and unusual" because they are "exceptionally lethal weapons of war" that are not appropriate for civilian use: "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." The four dissenters, by contrast, note that "assault weapons" and "large-capacity magazines" are indisputably "in common use for lawful purposes," since they are owned by millions of law-abiding Americans: "As long as the weapon chosen is one commonly possessed by the American people for lawful purposes—and the rifles at issue here most certainly are—the state has very little say about whether its citizens should keep it in their homes for protection."

Contrary to the majority's assertion that the guns Maryland banned are similar to the M-16, none of them is capable of automatic fire. The majority's judgment that folding stocks, flare launchers, and flash suppressors make rifles "exceptionally lethal" is dubious. It is also irrelevant, because the Supreme Court did not say the Second Amendment allows bans on exceptionally lethal weapons. It said the Second Amendment allows bans on "dangerous and unusual" weapons that are not "in common use for lawful purposes," and that description plainly does not apply to rifles that are among the most popular in the country. The argument that magazines capable of holding more than 10 rounds are more lethal than smaller magazines is more logical but still irrelevant, since "large-capacity magazines" are very common, sold standard with many handguns and rifles.

Despite the apparent conflict with Heller (and with McDonald v. Chicago, which extended Heller's logic to state and local governments), the Supreme Court so far has not agreed to review any decisions dealing with "assault weapon" bans. In addition to the 4th Circuit, two other federal appeals courts—the D.C. Circuit and the 7th Circuit—have upheld such laws since Heller, while the 9th Circuit has upheld a local law restricting magazine size.

In 2015, when the Supreme Court declined to hear an appeal of the 7th Circuit's decision, Justice Clarence Thomas vigorously dissented. "The Seventh Circuit ultimately upheld a ban on many common semiautomatic firearms based on speculation about the law's potential policy benefits," Thomas wrote. "If a broad ban on firearms can be upheld based on conjecture that the public might feel safer (while being no safer at all), then the Second Amendment guarantees nothing....The overwhelming majority of citizens who own and use such rifles do so for lawful purposes, including self-defense and target shooting. Under our precedents, that is all that is needed for citizens to have a right under the Second Amendment to keep such weapons."

We would expect a newly reconstituted Supreme Court that includes a Justice Gorsuch would take up the conflict among lower courts, and have the Supreme Court, yet again, set the matter straight. Until then, feel-good "conjecture" about the benefits of gun control would appear to trump the Second Amendment in some parts of the country.