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Bastards on the bench: Fourth Circuit limits Second Amendment right to possess common firearms

The chip­ping away at the right to defend one­self con­tin­ues.

What hap­pens when courts cre­ate faux rights, such as the “right” for for­eign nation­als to immi­grate, the “right” for states to demand more immi­grants from the fed­er­al gov­ern­ment, the “right” for ille­gal aliens to obtain driver’s licens­es, or the “right” to 15 days of ear­ly vot­ing?

Inevitably, the courts over­look the most foun­da­tion­al of rights that are writ­ten in plain Eng­lish — the ones that serve as the foun­da­tion of our repub­lic. Last week, it was a state court in Wash­ing­ton vio­lat­ing the prop­er­ty and con­science rights of those who don’t ser­vice homo­sex­u­al cer­e­monies. Today, it is the courts infring­ing upon the one right that pre-dat­ed the Bill of Rights and is writ­ten in the most unam­bigu­ous and absolute terms: “shall not be infringed.”

As is always the case, after con­ser­v­a­tives secured a 2–1 vic­to­ry at the Fourth Cir­cuit last year against Maryland’s “assault weapons” ban, the full en banc pan­el upheld the law. In a 10–4 rul­ing – one which was full of venge­ful rhetoric over Sandy Hook and igno­rance of the dis­tinc­tion between a machine gun and a ‘scary look­ing’ semi-auto — the court ruled that Mary­land could ban 45 com­mon­ly held weapons as well as mag­a­zines that hold more than 10 rounds. “We have no pow­er to extend Sec­ond Amend­ment pro­tec­tion to the weapons of war that the Heller deci­sion explic­it­ly exclud­ed from such cov­er­age,” wrote a brazen Judge Robert B. King. Every Demo­c­rat appointee except for Judge William Traxler (who wrote the dis­sent) and one GOP appointee joined the major­i­ty opin­ion.

Fol­low­ing the Sandy Hook shoot­ing, states like Mary­land, New York and Con­necti­cut banned a mul­ti­tude of semi-auto­mat­ic rifles con­tain­ing cos­met­ic fea­tures that make them look scary. Some states also required forced reg­is­tra­tion of those firearms already owned by pri­vate cit­i­zens. Addi­tion­al­ly, they banned mag­a­zines that hold more than 10 rounds. Yet, despite almost a decade since the Heller deci­sion, the low­er courts have been allowed to chip away at this foun­da­tion­al right. Thus far, the Sec­ond, Fourth, Sev­enth, and Ninth Cir­cuits have all ruled that almost any com­mon gun or mag­a­zine in use can be banned by a state if the pis­tol grips and picatin­ny rails on the rifles look scary. Addi­tion­al­ly, the Sec­ond, Third, Fourth, Ninth, and Tenth Cir­cuit Courts have each ruled there is no right to self-defense out­side the home — in con­tra­ven­tion of the plain lan­guage of the Heller deci­sion.

As I’ve writ­ten before, the notion that any com­mon weapon can be banned vio­lates the inalien­able right to self-defense, which pre­dat­ed the Sec­ond Amend­ment. It is a nat­ur­al right. Yet, giv­en that we live in a world where rights come from the Supreme Court, we should at least ensure that low­er courts prop­er­ly read the text of the Heller deci­sion. Here is what Scalia wrote in the major­i­ty opin­ion:

We know of no oth­er enu­mer­at­ed con­sti­tu­tion­al right whose core pro­tec­tion has been sub­ject­ed to a free­stand­ing “inter­est-bal­anc­ing” approach. The very enu­mer­a­tion of the right takes out of the hands of government—even the Third Branch of Government—the pow­er to decide on a case-by-case basis whether the right is real­ly worth insist­ing upon. A con­sti­tu­tion­al guar­an­tee sub­ject to future judges’ assess­ments of its use­ful­ness is no con­sti­tu­tion­al guar­an­tee at all. Con­sti­tu­tion­al rights are enshrined with the scope they were under­stood to have when the peo­ple adopt­ed them, whether or not future leg­is­la­tures or (yes) even future judges think that scope too broad.

Thus, con­trary to the Fourth Circuit’s opin­ion, this case has already been addressed by Heller. There is no gov­ern­ment “inter­est bal­anc­ing” for per­ceived ben­e­fits of pub­lic safe­ty that can jus­ti­fy the infringe­ment upon the right to self-defense for any com­mon­ly held weapon used for law­ful pur­pos­es.

Pro­tect­ing gun rights from heavy-hand­ed laws in blue states is prac­ti­cal­ly the only ben­e­fit left for con­ser­v­a­tives to keep the prac­tice of judi­cial review.

Judge William Traxler, in a rare dis­play of intel­lec­tu­al hon­esty for a Demo­c­rat appointee, laid out the con­se­quences of this case in plain Eng­lish:

Today the major­i­ty holds that the Gov­ern­ment can take semi auto­mat­ic 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, in the case of low­er courts uphold­ing sweep­ing gun bans, the silence of more than three jus­tices will­ing to grant cert to peti­tion­ers (it takes four) is deaf­en­ing. As Jus­tice Thomas has not­ed in his dis­sent on the denial of cert on the two pre­vi­ous assault weapons bans, the oth­er jus­tices (pre­sum­ably Roberts and Kennedy includ­ed) are clear­ly allow­ing the Sec­ond Amend­ment to become a sec­ond-class right. And Roberts was allow­ing this to hap­pen even when Scalia was on the court. Thus, don’t expect this to change after Gor­such takes his seat on the high court.

What this deci­sion demon­strates, once again, is that not only does stare deci­sis (prece­dent) only hold true for lib­er­al Supreme Court rul­ings, but it fails to bind even the low­er courts to opin­ions it doesn’t like. This is the same ratio­nale the Ninth Cir­cuit used to trash 200 years of set­tled case law when they cre­at­ed a right to immi­grate.

Pro­tect­ing gun rights from heavy-hand­ed laws in blue states is prac­ti­cal­ly the only ben­e­fit left for con­ser­v­a­tives to keep the prac­tice of judi­cial review. Yet, the past five years of gun cas­es has demon­strat­ed that the courts will nev­er serve as a legit­i­mate venue for us to pro­tect real rights. As such, why empow­er them to cre­ate pho­ny rights for pro­tect­ed class­es and dan­ger­ous rights for for­eign nation­als?

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Source: Bas­tards on the bench: Fourth Cir­cuit lim­its Sec­ond Amend­ment right to pos­sess com­mon firearms

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ER1C ☠

ER1C ☠

Dedicated Second Amendment Advocate, At-Home Gunsmith, Designer, Blogger, Video Guy, Author, Business Owner & ReloadOne Member.

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