By David Codrea
The United States Court Of Appeals for the Fourth Circuit, in the matter of Kolbe v. Hogan, has upheld the state of Maryland’s so-called “assault weapon” ban. The en banc ruling in effect guts the purpose of the Second Amendment and the constitutional militia, to field citizen soldiers bearing “ordinary military equipment” intended to be taken into “common defense” battles.
The divided decision dashed hopes raised last year when a 3-judge panel ruled the doctrine of “strict scrutiny” should apply in determining if edicts like the Orwellian-named Maryland Firearm Safety Act violated Bill of Rights protections. That still left open the question of how courts would interpret the “legal” benchmark for weapons designated “in common use at the time.”
Not only did the full court deny such weaponry is protected, it went even further to relegate a fundamental right to lesser status.
“Even if the banned assault weapons and large-capacity magazines are somehow entitled to Second Amendment protection—the district court properly subjected the FSA to intermediate scrutiny and correctly upheld it as constitutional under that standard of review,” the majority wrote.
A “legalese” detour may be helpful here for those of you whose eyes, like mine, glaze over when the clear intent of the founders is subjected to rhetorical gamesmanship. Per FindLaw, “Strict Scrutiny … is the highest level of scrutiny applied by courts to government actions or laws. The US Supreme Court has determined that legislation or government actions … must pass this level of scrutiny … whenever a ‘fundamental right’ is being threatened by a law [and] requires the government to prove that: There is a compelling state interest behind the challenged policy, and the law or regulation is narrowly tailored to achieve its result.”
So naturally, the Fourth Circuit majority (which maddeningly, includes Ronald Reagan appointee J. Harvie Wilkinson, as avowed an enemy of your right to keep and bear arms as the most fanatical Bloomberg apparatchik) chose the “intermediate scrutiny” standard. That’s not only “less demanding,” all a law needs do to be upheld is “[s]erve an important government objective, and be substantially related to achieving the objective.”
If that “government objective” includes making sure you understand who serves whom and who has the guns to back it up, so be it. At least the Fourth didn’t downgrade things even further and impose “rational basis review,” which is essentially “We can do what we want, so there!” (If you don’t like it, it’s up to you to prove “[t]he government has no legitimate interest in the law or policy; or [t]here is no reasonable, rational link between that interest and the challenged law,” and good luck with that.)
“We conclude … that the banned assault weapons and large-capacity magazines are not protected by the Second Amendment,” Judge Robert King, a Clinton appointee (also backed at the time by Democrat/Klansman Robert Byrd and Republican oligarch Jay Rockefeller), wrote for the Fourth Circuit majority. “That is, 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… Put simply, we have no power to extend Second Amendment protection to the weapons of war that the Heller decision explicitly excluded from such coverage.”
It wasn’t so much “excluded” as deferred to a later decision, albeit a concession not part of the Heller argument was needlessly (but nonetheless purposely) volunteered.
“Miller’s holding that the sorts of weapons protected are those ‘in common use at the time’ finds support in the historical tradition of prohibiting the carrying of dangerous and unusual weapons,” Antonin Scalia wrote for the SCOTUS majority in Heller. And that was all the opening an activist judge like the Fourth’s King needed.
“Let’s be real,” he told the media. “The assault weapons banned by Maryland’s [law] are exceptionally lethal weapons of war. I am far from convinced that the Second Amendment reaches the AR-15 and other assault weapons prohibited under Maryland law, given their military-style features, particular dangerousness, and questionable utility for self-defense.”
While self-defense is unquestionably a benefit, “weapons of war” are precisely what “the people” are entitled to have. That’s why the militia was (and still is, by some of us) deemed “necessary to the security of a free State.”
Any honest reading of the Founders’ intent and of prior precedent would have to concede the “in common use at the time” qualifier from 1939’s US v. Miller was that a weapon must have “some reasonable relationship to the preservation or efficiency of a well regulated militia [or] that this weapon is any part of the ordinary military equipment, or that its use could contribute to the common defense.”
That’s the key point being ducked and intentionally ignored. The function of the militia was—and is—to field citizen soldiers. And these citizens must bear arms suitable for that purpose. The militia in the War of the Rebellion did not assemble on the green bearing clubs and spears. They came with the intent to match and beat the professional military threat of the most powerful empire of the time.
Thus we find ourselves with the Fourth Circuit decision standing throughout its jurisdiction, providing precedent and encouragement for gun-grabbers to press for expansion. The only “legal” hope is for the Supreme Court to first weigh in (they aren’t required to hear the case) and then to uphold original intent. And at this writing, there are no guarantees of either outcome.
President Donald Trump has nominated Judge Neil Gorsuch to fill the vacancy created by Scalia’s untimely death, and it looks like (by the time this magazine hits your mailbox or the newsstand) he may very well be seated. He comes with high hopes and endorsements from the Big Three national gun groups, the National Rifle Association, the Second Amendment Foundation and Gun Owners of America, which cite his opinion that “the Second Amendment protects an individual’s right to own firearms and may not be infringed lightly.”
It’s that “lightly” part that raises a flag for some of us, and raises the question of why would anyone advocate a rubber stamp approval instead of demanding the type of vetting that they would require were they to make an important hire? Especially since so much is at stake and since this type of opportunity doesn’t often come along, and that we’ll all have to live with the appointment for a long time.
It’s fair to recall it was not that long ago David Souter was being presented by establishment Republicans as “a home run,” and that when it came to Heller, he tried to hit one for the other side. It’s also prudent to recall other Republican-appointed disasters, like Earl Warren, William Brennan and Warren Burger…
Perhaps such fears are unfounded. Perhaps Gorsuch will prove an understanding of founding intent that will make us all rejoice.
It looks like Kolbe may well provide the showdown in which we’ll find out. But in case that doesn’t work out, the showdown will then get personal. That’s when you and I must decide if we’re going to surrender and obey, or refuse to comply and steel ourselves for the consequences.