The Fourth Circuit Court of Appeals dealt a big blow to the Second Amendment Tuesday by emphatically upholding Maryland’s ban on so-called ‘assault weapons’ and ‘high-capacity’ magazines in the case of Kolbe v. Hogan.
In a 10-4 majority opinion, the court, which is based out of Richmond, Virginia, wrote that the Supreme Court’s landmark 2008 Heller v. District of Columbia decision left the door open to permit governments to regulate firearms that are similar to those issued to military personnel.
“Both before and after Newtown, similar military-style rifles and detachable magazines have been used to perpetrate mass shootings in places whose names have become synonymous with the slaughters that occurred there,” wrote Judge Robert B. King in the majority opinion.
“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,” King continued. “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.”
To make its case about black rifles, the opinion cites a 1994 Treasury Department study that identified certain rifle features and accessories that “serve specific, combat-functional ends.” Those include the usual suspects: flash suppressors, barrel shrouds, folding and telescoping stocks, pistol grips, grenade launchers, night sights, bayonet mounts and large capacity magazines.
“The banned assault weapons ‘are firearms designed for the battlefield, for the soldier to be able to shoot a large number of rounds across a battlefield at a high rate of speed,’” the opinion reads, citing the filings. “Their design results in ‘a capability for lethality — more wounds, more serious, in more victims — far beyond that of other firearms in general, including other semiautomatic guns.’”
Passed in the wake of Sandy Hook, Maryland’s Firearms Safety Act of 2013 banned magazines with a capacity greater than 10 rounds and center-fire semiautomatic rifles that accept detachable magazines and have two or more of those aforementioned scary features and accessories. Those who possessed an ‘assault weapon’ prior to 10/1/2013 were allowed to maintain possession of it provided they register it with the state authorities.
The National Shooting Sports Foundation, along with two Maryland gun owners, sued the state arguing that the sweeping ban was unconstitutional because AR and AK rifle platforms are commonly possessed for lawful purposes, particularly self-defense.
Judge William Byrd Traxler, Jr., who wrote the dissenting opinion and was joined by three other judges, trashed the majority decision.
“Today the majority holds that the Government can take semiautomatic rifles away from law-abiding American citizens,” wrote Traxler. “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 also said that the court should apply a stricter review before the law is allowed to stand.
“For a law-abiding citizen who, for whatever reason, chooses to protect his home with a semi-automatic rifle instead of a semi-automatic handgun, Maryland’s law clearly imposes a significant burden on the exercise of the right to arm oneself at home, and it should at least be subjected to strict scrutiny review before it is allowed to stand,” he wrote.
This marks the fifth time a federal appeals court has rejected a lawsuit challenging the constitutionality of a ban on modern sporting rifles. Overall, seven states and the District of Columbia have strict bans on the ownership of black rifles.
My $.02. The ruling is B.S. But what’s even more frustrating is the hole in the Heller Decision that has given these appeals courts the grounds on which to uphold these asinine bans. When Scalia wrote the Heller decision, he knew he had left the door open on this issue. As he famously stated in an interview with Fox News on the constitutionality of black rifles, “It’ll have to be decided” (see video above).
“Yes, there are some limitations that can be imposed,” Scalia told Fox New’s Chris Wallace. “What they are will depend on what the society understood was reasonable limitation” during the founding and framing of the Constitution. Scalia gave a historical example, a “head axe,” which was banned under an affrighting statute that prohibited weapons designed to intimidate and/or scare people.
Wallace then asked Scalia about black rifles, which can fire “a hundred shots in a minute,” and whether or not those can be banned by state governments and municipalities without violating one’s right to keep and bear arms.
“The [2nd Amendment] does not apply to arms that cannot be hand-carried,” Scalia said. “It’s to keep and bear. So, it doesn’t apply to cannons. But I suppose there are handheld rocket launchers that can bring down airplanes that will have to be — it will have to be decided.”
Bottom line: until the Supreme Court takes a whack at one of these cases (the high court has turned down cases that address black rifle bans with regularity since Heller) and makes a final decision, we’re are going to be left with the current patchwork of laws that permit modern sporting rifles in some states and outlaw them in others.
With that in mind, we should be counting our blessings that we should have Trump-appointee Judge Neil Gorsuch joining the bench instead of Obama-appointee Judge Merrick Garland.