Mimesis Law
9 March 2021

Fourth Circuit Fires a Shot Across Second Amendment’s Bow

February 24, 2017 (Fault Lines) – The Second Amendment brings out a uniquely hypocritical reaction in American citizens. The right-wingers love a fascist police state with a powerful law enforcement branch. Until it tries to take their guns. The left-wingers flip out over the idea of banning Muslims, but jump at the chance to ban guns.

The hysteria surrounding the Second Amendment is enough to make a constitutional scholar crazy. It is the one constitutional right in danger of going away on pure hype. And the United States Court of Appeals for the Fourth Circuit should be the last group to fall for that hype. But fall it did.

Kolbe v. Hogan started with Maryland’s ban on certain weapons.* Maryland’s General Assembly passed the Firearm Safety Act of 2013, outlawing the AR-15 and other “military style” rifles and shotguns. After the law passed, some Maryland residents sued the state to stop the ban.

The Plaintiffs argued the law violated the Second Amendment. The law also allowed retired law enforcement to own these guns, so the Plaintiffs fired off an Equal Protection claim. The district court ruled in favor of the State on summary judgment, which meant there was no trial.

The case ended up in the Fourth Circuit last year. Yours truly brought you the story and was impressed with the Court’s decision.

The Fourth Circuit’s majority opinion, written by Chief Judge William Traxler and Judge Steven Agee, explains exactly how the Court goes about considering the attempted limitation of a constitutional right. Note that they don’t blabber about natural rights or quibble with the Constitution’s effect. They actually reason through the issue, which is not at all a bad way to reach an opinion.

The problem with the gun debate is the hysteria that accompanies it. The original panel opinion from the Fourth Circuit avoided that.

The Court found the two items at issue, semi-automatic rifles and large capacity magazines, are commonly possessed by law-abiding citizens for lawful purposes. In short, a bunch of people have semi-automatic rifles, and a bunch of people have magazines that hold more than ten rounds. Those people don’t have these items for sinister or illegal purposes; they have them for self-defense.

The Court also rejected an argument that an unusually dangerous weapon would fall outside of the Second Amendment’s protection. Ignoring the mass shooting hysteria both the district court and the dissent fell for, the Court recognized that there was no valid way to determine how dangerous a weapon was.

The crux of the opinion was based on the level of scrutiny the district court should apply.

There are two types of scrutiny, or levels of review, that could be applied. Intermediate scrutiny, which is how the district court looked at the matter, requires a reasonable fit between a regulation and a substantial government objective. Strict scrutiny, on the other hand, requires the government to use the least restrictive means possible to achieve a compelling government interest.

There is a pretty big difference between the two. One is “yeah close enough” and the other is “be careful, that’s the constitution you are screwing with.”

That was a good day for the Constitution. But the day ended earlier this week. The original opinion came from a panel, which is three judges. Maryland asked for en banc review. En banc is a fancy way to say “all the judges.” The new opinion, which overrules the old opinion, engaged in exactly the kind of emotional argument the first opinion didn’t.

The en banc opinion started out with reference to the shootings in Newtown, Aurora, San Bernadino, Orlando, and Virginia Tech. The rhetorical device is simple. It’s hard to argue with the violence that took place at those places. Child victims and shattered peace make for a cold dose of reality. On your Facebook wall it’s an effective way to crank up the kooky comments.

But this is the Fourth Circuit. We should expect more thoughtful analysis and less drama. The Court goes on to argue the military features of the banned weapons are what take them out of the Second Amendment’s protection. Repeatedly referring to mass shootings and law enforcement shootouts, the guns are blamed for all manner of violence.

The argument seems to boil down to whether the guns are “weapons of war” or popular. The majority opinion says the Second Amendment doesn’t protect weapons of war. The dissent says the widespread acceptance of the weapons means District of Columbia v. Heller applies, which said:

…the Second Amendment protects those weapons “typically possessed by law-abiding citizens for lawful purposes.”

Guns are a sideshow. The real issue here is how we want to view the Constitution. As Ken White has said, you can’t pick out which rights you want and which ones you don’t. You are stuck with them all. Or, if you keep insisting on taking them away, none.

The Fourth Circuit engages in a laundry list of reasons why it should take a serious shot at the Second Amendment. It starts by making sure we all understand the Supreme Court’s decision in Heller doesn’t win the day, because it was not the final word on gun rights.

 …the Heller decision was not intended “to clarify the entire field” of Second Amendment jurisprudence.

This clears the way to pick and choose which parts of Heller should apply. The Fourth Circuit agreed with the district court’s doubts that the banned weapons were commonly possessed for lawful purposes. While Heller drew a bright line between fully automatic and semiautomatic weapons, the Fourth Circuit took it upon itself to redraw the line. It opined Heller really meant the line was between weapons that are most useful in military service, and those that are not. Weapons most useful in military service are not entitled to constitutional protection.

The Court also engages in the familiar logic of prohibition:

Although the plaintiffs fault the FSA for not targeting the firearms most used in crime and for not thereby promising to reduce gun crimes in Maryland overall, that is not the FSA’s purpose. Rather, as the State has described it, the primary goal of the FSA “is to reduce the availability of assault long guns and large-capacity magazines so that when a criminal acts, he does so with a less dangerous weapon and less severe consequences.”

 You may remember this refrain from the popular hit “War on Drugs.” Outlaw something and it goes away, right?

But we can never forget all laws start with you in mind.

Another objective is to prevent the unintentional misuse of assault weapons and large-capacity magazines by otherwise law-abiding citizens. Maryland relied on evidence that, by reducing the availability of such weapons and magazines overall, the FSA will curtail their availability to criminals and lessen their use in mass shootings, other crimes, and firearms accidents.

 Great. The irresponsible now dictate the responsible. And again with “when we take things away from criminals, criminals stop using things.” Kind of gives the opinion a retro feel.

The dissenting opinion was written by Judge Traxler and joined by three other judges, including Judge Agee. Traxler and Agee were the majority in the original panel opinion. They stuck to the law, which of course doomed them to the losing side. Traxler’s opening was just as dramatic as the majority’s, but less about feelz and more about the Constitution.

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.

 Traxler argued the Supreme Court has been clear in stating that common use for a lawful purpose results in Second Amendment protection for a weapon. He recognizes that it’s more important to consider the weapons’ actual uses, which are lawful, than the potential uses, which involve no end of nefarious purposes.

The firearms ban doesn’t really address the violence problem, doesn’t actually ban all dangerous weapons, and will fail like every other prohibition has. But it feels good to ban things that scare us, even when the ban will prove useless.

So now, in the Fourth Circuit, it’s open season on long guns. As long as the government can show those guns are most useful in military settings, a standard both vague and easy to meet, it can take those guns from the citizenry.

And while you may love that result, remember one thing. There will be plenty of rights left when this one is gone. Hopefully the government doesn’t target your preferred right. But when they do, grab a slingshot. That should be about the only thing left to defend yourself with.

* I am not going to call them assault weapons, because that’s not a thing.

5 Comments on this post.

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  • Keith
    24 February 2017 at 9:42 am - Reply

    The majority opinion says the Second Amendment doesn’t protect weapons of war.

    The majority opinion goes out of its way to say that standard semi-automatic rifles are very similar to weapons of war*. It goes as far as to say: “The difference between the fully automatic and semiautomatic versions of those firearms is slight.”

    This is a very misleading foundation as there are no versions of the AR-15 sold in America that are found on a battlefield or even slightly like fully automatic weapons (which have been defined as having the ability to fire more than one round with a single trigger pull) that have been regulated by the GCA since 1934. Clearly they knew this, as the opinion says: “With limited exceptions, M16s and other machineguns have been banned nationwide since 1986”. The majority then invents rates of fire tests and do calculations based on 30 round magazines, which were banned in Maryland even BEFORE the FSA went into effect.

    This clears the way to pick and choose which parts of Heller should apply.

    Like the word “and” sitting right between “dangerous and unusual weapons“.

    Assuming the Court wants to call the weapon dangerous (aren’t all guns?), it’s certainly not an unusual one, being one of the most common rifles sold and owned in America. Hell, it’s even legal in NJ (for now). The majority opinion, in attempting to support it’s claim that it’s “unusual and or dangerous” says “Large-capacity magazines are a feature common, but not unique, to the banned assault weapons, many of which are capable of accepting magazines of thirty, fifty, or even 100 rounds.”

    * let’s ignore, for a moment, the logical leap Heller takes that would have banned muskets under this definition at the time of the ratification of the second amendment itself.

    • David Meyer Lindenberg
      24 February 2017 at 9:55 am - Reply

      Keith says what I was going to say, but does so more eloquently. +1

  • DaveL
    24 February 2017 at 10:35 am - Reply

    I find the majority’s reasoning puzzling. Why should “weapons of war” be outside the 2nd Amendment’s purview? A militia, after all, is not a hunting party, nor is it a target shooting club. It is an ad-hoc armed force, meant to fight in wars. For most of this nation’s history, private citizens have owned firearms similar to the military service rifle of the day, whether it was the flintlock musket or the semi-automatic rifle. It wasn’t until about some time in the 1980s that anybody decided there was something untoward about this.

  • Dwight Mann f/k/a “DM”
    24 February 2017 at 1:16 pm - Reply

    “* I am not going to call them assault weapons, because that’s not a thing.”

    C’mon Josh, you even quoted the decision so you know the right nomenclature: “Rather, as the State has described it, the primary goal of the FSA ‘is to reduce the availability of assault long guns . . ..'”

    The circuit majority nicely spelled out that this is about assault long guns, as opposed to assault pistols, assault revolvers, assault derringers or, the always dreadful, assault flintlock.

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