A divided Fourth Circuit Court of Appeals has just upheld the Maryland law banning certain rifles and magazines, in the matter of Kolbe v. Hogan.

The case centered on the Maryland Firearm Safety Act of 2013 (FSA), passed in the panic following the attack on the Sandy Hook elementary school. The law banned the possession of certain semiautomatic center fire rifles and pistols that it refers to as “assault weapons” as well as detachable magazines that have a capacity of more than ten rounds of ammunition. The law had been challenged by a bevy of plaintiffs arguing violation of the right to keep and bear arms protected by the Second Amendment and incorporated to the several states via the Fourteenth.

Last year, a three judge panel of Fourth Circuit held that strict scrutiny should apply when considering whether or not the act violated the protections afforded by the Bill of Rights. It’s not surprising that the full Fourth Circuit decided to hear the case en banc, given that this was a matter of first impression, (and, I note, some other Circuits have effectively been applying the lower review standard of intermediate scrutiny on Second Amendment issues.)

The Court’s decision had a bit of a vengeful tone from the start, where the court spilled a bit of ink emotionally justifying its decision by talking about the Sandy Hook attack and others. It then vacated the earlier decision, stating that intermediate scrutiny was the appropriate level of review, and then explicitly holding that the rifles and magazines identified in the FSA were outside the protection of the Second Amendment. In fact, it held so because they were “most useful in military service.”

We conclude…that the banned assault weapons and large-capacity magazines are not protected by the Second Amendment. 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. See 554 U.S. at 627 (rejecting the notion that the Second Amendment safeguards “M-16 rifles and the like”). 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. Nevertheless, we also find it prudent to rule that — 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.

Ah, yes, Heller. I went to the source, because at this point in the #fakenews cycle, I don’t take anyone’s word on anything. Alas, they’re right. Here’s what the late Justice Scalia had to say:

We also recognize another important limitation on the right to keep and carry arms…. [T]he sorts of weapons protected were those “in common use at the time.”  We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of “dangerous and unusual weapons….”

It may be objected that if weapons that are most useful in military service—M-16 rifles and the like—may be banned, then the Second Amendment right is completely detached from the prefatory clause. But as we have said, the conception of the militia at the time of the Second Amendment ’s ratification was the body of all citizens capable of military service, who would bring the sorts of lawful weapons that they possessed at home to militia duty. It may well be true today that a militia, to be as effective as militias in the 18th century, would require sophisticated arms that are highly unusual in society at large. Indeed, it may be true that no amount of small arms could be useful against modern-day bombers and tanks. But the fact that modern developments have limited the degree of fit between the prefatory clause and the protected right cannot change our interpretation of the right.

It sure looks like the Fourth Circuit used the (non-precedential) dicta in Heller to help hang their hat in this decision.

That said, there was a vigorous dissent here by Judge Traxler, and the majority was aghast at the notion of extending “Second Amendment protection to each and every weapon deemed sufficiently popular — no matter how violent or dangerous that weapon is.” I’ve not had a chance to review the case and consider its implications fully yet (that will come later,) but I will conclude with this bit from the numerous dissenting judges:

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.

No word yet on whether the appellants will apply for certiorari to the U.S. Supreme Court. It will be interesting to see how a putative Justice Gorsuch might impact such a ruling.

99 Responses to BREAKING: Fourth Circuit Upholds Maryland Rifle, Magazine Ban

    • Just don’t be surprised if Gorsuch takes the same approach. From what he has said, he’s probably open to some “reasonable” restrictions. He said that the 2A may not be infringed lightly. I wouldn’t be surprised if he, too, thought that the 2A does not apply to these so-called weapons of war. I guess the left is moving on from ‘assault weapons’ to ‘weapons of war’ in order to justify additional restrictions.

      • Of course a Republican Congress could exercise their Article I powers over arming the militia and just preempt all this bs. In other words declare the AR-15 and 30 round mags protected militia arms.

        • Or just pass a damn law at long-last stating it is “illegal for any state or local official to pass a law banning the possession, sale, or manufacture of in the interest of upholding the RKBA” and *daring* SCOTUS to overturn its own incorporation of a civil liberty and at the same time deny congressional supremacy in the area of defending civil liberties from state oppression. You’d *think* there would be more than enough support from the “Pro-gun NRA-owned” party with a majority of both houses and the presidency to pull this off, considering there is ample authority for them to do so, yet I’m sure such an obvious and appropriate solution to the problem is beyond their notice.

      • The 4th circuit used to be a very conservative circuit. Obama got 6 judges on the 4th and completely flipped it. A number of the clinton judges in this circuit are older and probably close to retiring or taking senior so trump can get it back to at least an even split.

      • Being open to “reasonable restriction” of anything isn’t per se cause for panic or paranoia, because any first year could tell you that, at the end, “reasonable restriction” is baked into the jurisprudence of each and every of the bill of rights. What matters is if Gorsuch understands that what is “reasonable” as pertains to firearms should be as high a bar as it is vis a vis speech, or warrants, or due process, or religion.

        At a thumbnail glance, sounds like the 4th Circuit has grabbed — and fairly misapplied — Scalia’s dicta and used it to gut the central holding itself. Unless I’m misreading it, they seem to have convinced themselves that modern sporting rifles fall outside the 2nd Amendment altogether based on that section? To sidestep applying heightened scrutiny at all? Gorsuch will be a vote to reverse on that, IMO, even if he may one day be open to an intermediate or strict scrutiny argument that would achieve the same end for Maryland.

        • I’m not paranoid, I’m cynical. Especially when it comes to judges and politicians. Let’s hope that I’m wrong in this case.

        • Yeah, Scalia was pretty clear that “reasonable restrictions” were subject to “strict scrutiny,” which at least theoretically removes all the risk of such infringements (i.e. hardly any would ever survive without overwhelming justification for restriction, such as existential threats or uncontrollable weaponry). In practice, lower courts ignored the rulings, called their warmed-over antigun nonsense “strict scrutiny” and voted as they always had to restrict our freedoms, and more recently even dropped that bit of fig leaf so as to get “intermediate scrutiny” for gun issues on the books *officially* as the final nail in the coffin of Heller/McDonald.

          McDonald incorporated the RKBA against the states; “intermediate scrutiny” is so low a bar that deference to the desires of state lawmakers will almost always be the overriding factor in court decisions founded in claimed social utility. Net result, RKBA is de-incorporated and states can pass whatever restriction they care to craft a cockamamie argument for.

        • barn- “…intermediate scrutiny” is so low a bar that deference to the desires of state lawmakers will almost always be the overriding factor in court decisions founded in claimed social utility. Net result, RKBA is de-incorporated and states can pass whatever restriction they care to craft a cockamamie argument for.”

          Excellent common-sense legal analysis! You get my legal eagle award for the month at least. You may be on to something here regarding the legal “standards” that govern the various state “licensing” systems.

          Berron v. Illinois State Police was denied for cert review by SCOTUS recently. The 7th Circuit Federal Court of Appeals in Chicago basically upheld the legal “standard” of “preponderance of the evidence” when deciding whether to reverse cop objections to concealed carry applications.

          Once you accept any sort of “licensing” system you’re toast. The criminal police state decides who owns or carries a gun based on administrative law and regulations, not Constitutional law.

          That’s why the traitors at NRA always promote concealed carry with a license, rather than open carry, strap up if you’re over twenty-one. NRA always promotes the licensing process that let’s the cops decide who gets rights.

      • Mr Pierogie- “Just don’t be surprised if Gorsuch takes the same approach. From what he has said, he’s probably open to some “reasonable” restrictions.”

        I’ll bet you’re right on Gorsuch. Watch and see if any Senators ask him about his 2nd Amendment positions. If no one questions him, I say the fix is in and he is a shill.

        Since NRA, Inc. is ecstatic about Gorsuch, I take that as an indication that he is compromised, since NRA sells out their members constantly.

      • Mr Pierogie, in Gorsuch’s opinion, he simply quoted Supreme Court decisions correctly. He just followed precedent without bending it to the breaking point to fit his personal opinion. That is what the 4th Circuit did.

      • What caliber, magazine sizes and/or weapons constraints should a mother, protecting her children from armed home-invaders be held to?

    • And the 2nd.

      Is the MD ban a “two feature ban” (i.e. cosmetic and reasonably easy to circumvent) or “one feature” like CT and NY have now?

      • Cosmetic, and HBAR AR-15s seem to be permitted (probably for hunting/match use). Standard-capacity magazines may be brought in from out-of-state. Honestly, given how comparatively harmless the ban is compared to NY and CA laws, I wonder if some POTG had a role in the wording to minimize its actual effects.

        • The people the MD mag ban really limits is people that can’t travel out of state to buy normal capacity magazines. Those would be the poor and that’s who MD is saying shouldn’t be allowed to own them. For the rest it is just is a significant inconvenience and annoyance.

        • Believe it or not, the original bill was amended very heavily by our current anti-gun AG Frosh in the effort to pass it, and then further amended by the anti-gun state senate leader Mike Miller. Frosh did it because he thought the original one-feature bill was too strict for the hunting crowd; Mike Miller did it because the POTG were deluging the phonelines and email boxes about the bill and wanted to look responsive.

          The outcome could have been worse, but it has actually been a bit of a CF because the current Republican governor has not lifted a finger to try to ease interpretation issues. The MSP licensing division has been stringent in some areas that they really had no reason to be, and has issued some very confusing guidance.

        • AR & AK pistols & SBRs are still legal as well. I bought a SCAR after the ban. All the semi auto long guns still legal are unregulated which means no 7 day wait. Take home same day. Shows how those who pass these laws don’t have a clue what they’re doing. Which can be good & bad because I agree that it could be much worse here as in other states, but it is bullshit nevertheless. Although we haven’t had a mass shooting that I recall so I guess the law is working! Great job MD!
          If the laws do get any stricter I will be looking for another state in which to live.
          & the mag ban also hurts MD local gun shops. Instead of buying mags there people are spending their money out of state. It’s all so very stupid.

      • NY does not have a ‘2 feature ban’ ‘it has an ‘anything’ ban. Any NY semi-auto rifle which accepts a magazine must be ‘featureless’- no pistol grip/thumbhole, no variable-length shoulder stock, etc.

      • Capital idea. Have all the lower courts rule that there is no individual right to walk about with a gun, or that any jurisdiction can place any sort of restriction that makes the community feel safer. That would leave all the appeals courts in agreement.

        Would the Supreme Court even take up a case with unanimous rulings in all the lower circuits? You might have opened up a right innovative approach to ensure common sense prevails.

  1. Well, stands to reason one of these cases will eventually make it to the Supreme’s, then maybe we can put this to rest.

  2. 10 – 9 = 9

    9 – 4 = All is well

    FIX THE COURTS !!!

    They are NOT the “Founders” NOR the “Drafters”

    AND NEITHER ARE THE PEOPLE WHO APPOINTED THEM, AND NONE OF WHICH WILL EVER QUALIFY.

  3. Panic? Obviously, you don’t live in what is laughingly called “The Free State”. The Democrats in the Maryland Leftistlature couldn’t WAIT to pass a draconian gun control act in the wake of Sandy Hook. All it took was something as terrible as that to give them the emotional impetus they needed. Never mind that long arms are seldom used in criminal shootings and horrors such as Sandy Hook are even more so. Ya gotta strike while the iron is hot!

    • Same as New York and Connecticut. The speed with which the legislation was rammed through is all the proof you needed to know the progressives running those states had long since drafted the legislation, and were just waiting for a tragedy to implement it.

  4. Surely I disagree with the analysis above, and find that when Johannes “went to the source” and found that “Alas, they’re right,” meaning that Scalia approved of the limitations imposed by the Fourth Circuit…that he was wrong. Scalia never said that semi-automatic rifles (never in fact issued to the military) could appropriately be banned. What Scalia said, in regard to limitations on weapons to be held of right by citizens, was this:

    “We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of “dangerous and unusual weapons….”

    “It may be objected that if weapons that are most useful in military service—M-16 rifles and the like—may be banned, then the Second Amendment right is completely detached from the prefatory clause. ”

    M-16 rifles and the like might be seen to include HK416s or other select-fire weapons. The history of US firearms legislation makes it very clear, though, that the Congress (and the Federal courts) have for many many decades differentiated full-auto capable from semi-auto rifles, carbines, and pistols.

    That Paulson could see in Scalia’s words approbation of the sloppy notion built into the 4th Circuit’s language is beyond me. However, I note the 4th circuit is on a roll. Only a few weeks ago they held that a licensed person carrying a concealed pistol should be presumed dangerous, and should be treated as roughly as necessary to prevent said person from attacking. Really. The presidential election really was every bit as important as we had foreseen.

      • Yes, the Garand is a semi-automatic rifle. However, it was the last semi-auto issued as a primary service weapon for the Army and Marines. Once upon a time, the Springfield Model 1903 was a primary service weapon, and it was bolt-action. So, will that be the next thing they want to ban, because once upon a time it was issued as a military weapon? What about lever guns? Single shot muskets? The whole thing is a stinking pile of manure.

        • If you actually look at some of the previously proposed rules for AWB and other gun control you will find that some of them have stated that one of the elements in deciding what’s banned is that it was “developed for military application” or uses a design which was is based on one developed for such a use. That pretty well covers every single firearm made.

          Most bolt guns come from from the Mauser action. Banned. Mosins were a military rifle. Banned. Revolvers were developed as a military side arm. Banned. All semi-autos pistols trace their lineage to trying to get military contracts. Banned. Semi auto rifles generally came from designs for the military most notably the M1 or M16. Banned. Ditto lever guns. Even the lowly pepperbox comes from a design to increase battlefield fire abilities. Banned. Hell, an enterprising government lawyer could probably arguing effectively that the Kentucky Long Rifle traces it’s lineage back to the Brown Bess and therefore is ripe for banning under such language.

          Apply those proposals as they were written and you’re pretty much left with derringers and a few exotic actions. Pardon me if I suspect that’s the entire point of the way those proposals were worded.

    • We need to focus on “in common use at the time” and “most useful in military service—M-16 rifles and the like—may be banned”.

      I think “most useful” is what could save us. Semi-autos are not most useful in military service, and Scalia quotes full auto weapons as an example of a “most useful” weapon. It could be argued that if the military would reject it for military use then it can be legally owned and I’m sure that all branches of our military would reject a semi-auto M16 style rifle for battle field use. Also, semi-autos are “in common use” at this time for hunting etc and the second amendment is not about hunting, it’s about self protection. Police use semi-autos extensively for self protection.

      I think if argued right this can be won but then we’re up against judges who want to make law instead of follow it. The judges could take the stand that bolt action sniper rifles are most useful for some military purposes and ban those too. The problem is not Scalia’s ruling, it’s the way the current judges interpret it by ignoring the parts that do not fit their view.

      Here’s the quote so you don’t have to scroll back up.

      We also recognize another important limitation on the right to keep and carry arms…. [T]he sorts of weapons protected were those “in common use at the time.” We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of “dangerous and unusual weapons….”

      It may be objected that if weapons that are most useful in military service—M-16 rifles and the like—may be banned, then the Second Amendment right is completely detached from the prefatory clause.

      • Mike:

        I f I didn’t misunderstand what you wrote, “semiautomatic rifles were never issued…”, a large number of former members of the U. S. MIlitary, who carried the Garand Rifle would disagree. I believe that they would strongly disagree.

  5. I’m old enough to remember when the 4th Circuit was considered the most conservative circuit. This makes it looks like they want to put liberal the 9th Circuit.

  6. But as we have said, the conception of the militia at the time of the Second Amendment ’s ratification was the body of all citizens capable of military service, who would bring the sorts of lawful weapons that they possessed at home to militia duty. … But the fact that modern developments have limited the degree of fit between the prefatory clause and the protected right cannot change our interpretation of the right.

    I’m not sure how anyone can read that and come away with any justification for Maryland’s restrictions. Looks to me like the 4th District was just casting about for any bit of legal-ish flotsam to keep their restrictions afloat.

    • Look at this gem:

      “… modern developments have limited the degree of fit between the prefatory clause and the protected right …”

      It is really hard to imagine how anyone could squeeze more FAIL in that sentence fragment.

      The key word “modern” means the courts will re-read the U.S. Constitution any way they like, a direct violation of law.

      The key words “fit”, “prefatory clause”, and “right” means the court is saying that the prefatory clause does limit the right, even though the U.S. Supreme Court said the prefatory clause does NOT limit the right.

      Ing got it right … the court crafted those words to lend an air of legitimacy to their corrupt decision. Those are the actions of traitors to our nation. Is anyone investigating whether North Korea or Russia bribed those justices?

  7. … [Fourth Circuit Court of Appeals] explicitly holding that the rifles and magazines identified in the FSA were outside the protection of the Second Amendment … because they were “most useful in military service.”

    That would be great except the Fourth Circuit’s decision (and U.S. Supreme Court’s Heller decision) directly contradict the U.S. Supreme Court’s 1939 Miller decision which protects:
    (1) Arms that are necessary for the preservation or efficiency of a well regulated militia.
    (2) Ordinary military equipment or arms that could contribute to the common defense.

    If semi-automatic handguns and rifles with magazine capacities of 15 to 30 rounds are not necessary for the preservation or efficiency of a well regulated militia … and are incapable of contributing to the common defense, I don’t know what is.

    This decision is another example of how corrupt the courts have become in our nation. Why do we conduct ourselves in deference to such obviously corrupt decisions?

    • Because the only direct alternative is to shoot cops who enforce these rulings? Seriously, there’s not a damn thing we can DIRECTLY do about this kind of shit, short of lining them up against a wall, and were not yet at that point.

      • Red in CO,

        I loath the idea of shooting anyone (including cops) for any reason, even when the reason is righteous/legitimate self-defense.

        We have to keep in mind that such cops are:
        (1) Acting in violation of their oath to support and defend the Constitution of the United States,
        (2) Doing it to protect their paycheck/pension, and
        (3) Destroying the lives of good people who have not attacked anyone and who have no intention of attacking anyone — whose “crime” is possessing a firearm that would be a great choice for the common defense. (This violates the bedrock principle of Common Law as well as simple common decency.)

        Why are we obligated to give those cops a pass?

        I applaud police actions to bring thieves, violent attackers, rapists, and murderers to justice. I cannot condone police actions which ruin the lives of good people who have not attacked anyone and have no intention of attacking anyone.

      • The term “uncommon” is completely viewpoint dependent.

        For gun people, every firearm available to sell is “common”; “common knowledge”, “common topic”, “common literature”. For anit-gun people (and maybe all those who are not sure), “common” means common in their experience. We do not see virtually everyone walking in public with guns in hand, or strapped on. We do not see virtually everyone in the country visiting shooting ranges. We do not see guns in every retail outlet. The only way one could conclude “common” for those people is the commoness of guns on TV and in movies. Both of which are not depictions of “common, everyday life” for viewers. Since guns are not pervasive features of ordinary life, they are not “common”.

  8. Maryland; where you don’t have the right to defend yourself outside your home with a handgun. Unless of course your a business owner making a security deposit with the blessing from the MSP (May Issue). BTW the 10 round magazine limit applies to handguns as well.

  9. Not only does this troubling opinion of the fourth circuit rely improperly on dicta in the Heller case, but it uses it incorrectly. This opinion draws the line incorrectly from Scalia’s statement.
    The category that the late justice Scalia remarked on was to distinguish as fully automatic military use firearms versus other types of semi automatic and other non-full auto firearms; it was not a distinction between military “looking” vs recreational “looking.”
    The 4th Circuit either misunderstood or misused the Scalia dicta.

      • Right. They ignore anything that doesn’t agree with how they “want to rule”. Our current judges are the problem and if we don’t fix the supreme court or get congress to act, crap like this will stand. Not only will it stand but it’ll snowball every time a new decision is made. Take Heller, it ignored parts of Miller and now there will be cases based on this 4th circuit ruling that twists it even further.

        • “Our current judges are the problem…”

          No, the judges (all along the spectrum) were appointed. Those doing the appointments are elected. The problem is the electorate. Or maybe not. The electorate earns the type of government (and judicial system) it receives. The flat out, no dodge, truth is that there are more people satisfied with their representatives, than not. The checks on government (elections) are the tools by which people are to exercise their power. If the power does not result in acceptable outcomes, it is the sole responsibility of those unhappy with the result to do what is necessary to press their positions and elect representatives that are more responsive. Court rulings are symptoms, not causes.

        • Re this Maryland decision, plus some other recent ones, the following question comes to mind. What world might it be that these learned jurists, they supposedly are such aren’t they, inhabit where the wording of The Constitution of The United States of America matters not, as in their view, seems to be the case?

  10. What military uses semi auto ar15s? Our civilian police use them not our military. They are not military weapons! An ar15 isn’t an M16! These people writing our laws and deciding the constitutionality of law are fricken idiots too lazy to do their due diligence. Scalia was talking about fully automatic weapons (M16) not in common usage. These judges make me sick with their straight up ignorance.

  11. Surely California and other states controlled by the left will move forward with banning all semi-auto rifles. We may have to wait for a couple of justices to pass from this mortal coil before we can right the ship.

    • Tyranny- “Surely California and other states controlled by the left will move forward with banning all semi-auto rifles.”

      Yes, they will move forward, except they will not ban military style rifles for police. Cops are above the law in “America” and militarized police forces now constitute a standing army, and an end run around Posse Comitatus.

      • Police must enforce laws against a horrible array of offenders. They should have at their disposal (not necessarily instantly on their persons) whichever “tools” (as you call them) prove necessary to the situation. Would POTG truly want police restricted to five-shot revolvers when presented with a criminal possessing automatic weapons? I believe there was much ridicule among the pro-gun cohort when the French police arrived at Charlie Hebdo with no weapons atall against terrorists.

        And no matter how you misunderstand the need for properly equipped police, you do recognize (“militarized police”) that sheriffs, police, and whatever law enforcement are the direct descendants of the militia enshrined in the American constitution. Nicely done.

        • Herpaderpherp no one said the police were the militia or related to it. Again with the reading comprehension.

          As to your barely cognizant point that the police need to be ‘properly equipped’, I suppose you’ve just completely thrown out the fact that police are *civilians* like everyone else not in the military on duty. So why are their lives more important than the other civilians’?

          Why are you against equal protection under the law? Why are you against civil rights?

        • The idea that law enforcement agents are the current embodiment of the historical “militia”, is because the original concept used militia as police. Given the original meaning of militia in 1789 included all able bodied men, and given that since about 1900, formal militias were disbanded and their enforcement mandate given over community-appointed formal law enforcement agents, those agents are the effective militia.

          As to police being “civilians”, in those wonderful pioneer days of yore, the militia acting as law enforcement were themselves “civilians”.

  12. This decision, unless superseded by a grant of review, will be used by the California legislature to finally do what it has been trying to do incrementally since 2000–completely ban AR style rifles from the State. The justification will be the these guns can be banned in the interest of “public safety.” It will not matter that there is no historical data of use in violent crimes–any more than it was necessary for the Se3venth Circuit to approve Highland Park, Illinois’s ban of such rifles. The only “proof” necessary to meet the (illegitimately low modern) standard of intermediate scrutiny is that the people “feel safer.” this is of course a very slippery slope, as it could lead the the conclusion that all arms could be banned except in the home, at the range, or while used for hunting, as long as “people feel safer”, and irrespective of whether that it true.

    • If democrat politicians and soccer mom activists really cared about “Public Safety”, they might do better to concentrate on muslim immigration. Sweden’s 3rd largest city, Malmo, has had 100 muslim immigrant committed Hand Grenade attacks over the last two years. Yep, HAND GRENADE. That’s one per week.
      Our news media, has, of course, been concealing that fact from the American people.

  13. # not my court
    # not my law
    # people pick and choose which laws to follow i.e. sanctuary cities and illegal immigration
    # civil disobedience

  14. How does one define “like the M16”?

    Any sane person who knows something about guns would say “automatic fire”

    But the courts have decided it means “looks scary”

  15. Since the Freddie Gray riots, I have not seen anything about Baltimore’s murder rate (which has nothing whatsoever to do with evil features on rifles and Maryland’s attempt to deflect the problem onto law abiding gun owners). Has it calmed down with the colder weather, or is it still one small step behind Chicago on the mayhem scale?

  16. Since citizens who pay taxes won’t be able to own semi-automatic military style rifles in Maryland, I’m sure that this ruling will apply to police departments too, right? I mean Joe Citizen pays their salary and all department firearms are owned by the taxpayers, right?

    I’ll be waiting for all the little crappy P.D.s to turn in their machine guns, Humvees and APC’s to the feds. No wait, the friendly little cop departments will need their heavy weapons when they go door to door to enforce this ban, so the police will be above the law, again.

    Those citizens with concealed carry licenses will be at the top of the list when the proper time comes. They tend to be the most politically active of gun owners, Tea Party types and so on.

    The privacy waivers in most state’s concealed carry statutes will be very helpful to the cops when they want to look for “the ringleaders.” You didn’t think those unlimited government-style privacy waivers were just for show, did you?

  17. I think the state should go ahead and push the envelope. Start rounding people up, go door to door with SWAT raids. What’s the worst that could happen?

  18. Appeals courts. A lovely concept, that. When the politicians and High Court are bollocks, the Court of Appeal is there to set things to right. Government proposes, the judiciary disposes. With just the article to tell us what’ what, seems the ruling is within reasonable interpretation the weapons of war are not within the second amendment protection. Sometimes it takes jurists closer to the people to niggle out the real application of a supreme court decision. The highest court sets the general theme, and the appeals courts determine the workable and most beneficial meanings in the details. Yet another win for “reasonable restrictions” on gun carrying.

    • You’re a real country-fried retard aren’t you? I guess reading comprehension was tossed aside to cram more self-righteous douchebaggery into your head, huh? Fuck off, commie dirtbag.

      And no, none of that constitutes an ad hominem attack, because it is all demonstrably true.

      • Quite amusing that one can begin with a ruling in a US court (land of the free, home of the brave), in a nation that is a democracy (yes, yes, I know all about that whole “representative republic/constitutional republic” shillyshally), and arrive at the conclusion anyone who agrees with the US, representative republic court holding is somehow a communist. Are you resident in a “nation of laws”, or a nation only laws you like?

        Have I not been quite open that the avenues to success are local ordinances and courts that are filled already with sensible jurists? Can you not see that the world turns, and your fondness for a time long gone is not the wave of the future?

        • Rrrriiiiggghhhhhttt… I’m sure you felt the same way about the courts upholding slavery and segregation. Real reasonable people right there. No one has rights but what you ‘feel’ they do. To be fair, a bit of supposition on my part, but I’ve seen statist scum like you troll around since this site was founded. Civil rights are not relics of a bygone era unless you happen to think we are in Soviet Russia or Communist China.

          There is nothing reasonable about the justices who think that it is okay for an elected representative to strip their constitutes rights. In case you overlooked it in your rush to post something smarmy, the appellate court was *split*, so the lower decision stands. The court did not agree that the legal challenge was correct or not. It was *split* between actual jurists, and statist traitors. And yes, they are traitors. When you violate your oath of office, you are a traitor.

          So my question to you is the same it has always been: why are you against civil rights?

        • “I’m sure you felt the same way about the courts upholding slavery and segregation.”

          The law is the law; right or wrong. Don’t like the law, use the standing process for changing the law (which I believe is what actually happened). Until the law is changed, it should be enforced. Why is that so difficult to grasp? Complaining about laws you don’t like, yet doing nothing to change them makes you sound like so many of the crazies over here. To be counted among them may not get you invited to the best clubs.

          “the appellate court was *split*, so the lower decision stands.”

          As I understand the system, courts of appeals decisions have three conditions: unanimous; divided (but with a majority ruling); split (where no majority exists). Divided and split are not synonyms.A divided court can sustain or overrule a lower decision. If the court of appeal divides, yet affirms, the lower ruling, of course the lower court decision is affirmed. In a true “split”, no majority of jurists exists, making the appeal essentially moot; lower decision stands. The case at the bar appears to have been one of a “divided” court of appeal, not a split. Apparently, the emotional quotient of “split” is that the court was avoiding a tough decision, allowing the lower court ruling to stand as a means of claiming no responsibility. I would posit that a split court merely represents a situation where there are simply not enough persuasive arguments to reach a firm conclusion; nothing more.

        • “The law is the law; right or wrong. Don’t like the law, use the standing process for changing the law (which I believe is what actually happened). Until the law is changed, it should be enforced. Why is that so difficult to grasp? Complaining about laws you don’t like, yet doing nothing to change them makes you sound like so many of the crazies over here. To be counted among them may not get you invited to the best clubs.”

          Says the person who actively tries to abrogate and circumvent the 2nd Amendment. Does your hypocrisy know no bounds?

          Also, did you remember how to read all of a sudden? Why is it you now recognize the court being split instead of making a ‘reasonable ruling’?

        • “Why is it you now recognize the court being split instead of making a ‘reasonable ruling’?”

          Let’s walk through this, slowly. Shall we?

          You used the term “split”, and its common result, to describe a “divided” ruling. My response was to point out that words have meaning, and the proper terms should be used, especially regarding law and courts. I did nothing to assign a value judgement (“reasonable”). But since you wandered off the carpet, yes, the “divided”, but final ruling was reasonable.

          The “divided” ruling states that the lower court properly used “intermediate scrutiny” (which captures the term “reasonable”) in the lower court decision. Therefore, if “reasonable” scrutiny applies, then the lower court ruling fits the standard, thus rendering the result of reasonable restrictions (Scalia), thus the lower court ruling is on firm constitutional ground.

          If you do not like the levels of constitutional scrutiny used by the courts, use the political system to set the boundaries of how courts must approach constitutional questions. Cannot the US legislature constrain not only which cases courts may consider, but the means (rationales) used in considering constitutional questions? I believe the answer is “Yes”. But we both know politicians want maximum vagueness and maximum circumspection, depending on which condition is most conducive to continued residence in the legislative bodies.

  19. Utterly amazed at how members of the 4th twisted the Heller decision into an OK for a weapons ban. Heller does NOT permit this and neither does the strict scrutiny it demands. The contempt these judges display for the citizenry should not be forgotten when civil society inevitably breaks down. Crap like this foments disdain for law and order from people who would otherwise obey the law.

  20. Anyone who looks at the government to protect the rights of citizens to be allowed to have weapons to protect them against government…is not thinking things through.

  21. Language from the case establishing intermediate scrutiny:

    “We accept for purposes of discussion the District Court’s identification of the objective underlying 241 and 245 as the enhancement of traffic safety. Clearly, the protection of public health and safety represents an important function of state and local governments. However, appellees’ statistics in our view cannot support the conclusion that the gender-based distinction closely serves to achieve that objective and therefore the distinction cannot under Reed withstand equal protection challenge.”

    The case was about whether or not the state could have different drinking ages for men and women. It accepted the validity of the statistics, for the sake of argument, then actually analyzed the statistics. Then the court basically said statistics couldn’t be relied on to justify violating equal protection because the court actually understood statistics.

    The case was about something that kills more people than guns. The government had statistical evidence that young men drove drunk more than young women. The governments actions addressed this important interest. This did not override constitutional concerns.

    The appellate court doesn’t understand statistics (or pretends not to). It also repeatedly said that the state’s actions were rationally related to the government’s interest. Intermediate scrutiny requires the state’s actions to be substantially related to the government’s interest. The standard this court applied was less than intermediate scrutiny.

    It also said that AR-15’s weren’t as popular for home defense as handguns. That was a lynch pin of their reasoning. Everyone needs to get semi-automatic rifles with detachable “high” capacity magazines for home defense. Then they’ll be constitutionally protected and handguns won’t. The second gun I bought was an “assault weapon.” One reason handguns are more popular for self defense is because they are more convenient to transport. If I had to go to a gunfight and could only bring one gun, it wouldn’t be a handgun.

    It also said AR-15’s weren’t protected under the Constitution because militaries have adopted M-16’s and AR-15’s are like M-16’s. You know what else militaries have adopted? Semi-automatic handguns. I haven’t read the complete text of Heller or McDonald recently, but I’m pretty sure they recognized a right to semi-automatic handguns.

    This decision is textbook judicial activism.

    • Miller would be a better precedent to argue on. It was a ruling on the NFA (upholding the ban on unregistered short barreled shotguns). In the decision, the court basically said that because the short barreled shotgun in question was not suitable for use by the military that it was not protected by the 2A.

      I think that case makes it pretty clear that the only guns protected by the 2A are those suitable for use by the military (and therefore the militias), and it is my firm belief that this was what the founders had in mind.

      • The Miller Court decided even more cautiously that IN THE ABSENCE OF EVIDENCE SUPPORTING SUCH A STANCE, there was no way for the Court to positively acknowledge that a sawed-off shotgun was protected under the 2nd Amendment. (Miller and Layton no longer had legal representation after District Court proceedings and were not represented during oral arguments before SCOTUS.)

        To quote the salient paragraph directly from Justice McReynolds’ decision:

        “In the absence of any evidence tending to show that possession or use of a ’shotgun having a barrel of less than eighteen inches in length’ at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense.”

  22. I am so sick of these progressive activists. First of all, The Founders considered the Second Amendment a natural follow-up to what they believed, and what I believe is a natural right from GOD. The right to self defense. No Judge, No President, No body of lawmakers may infringe upon my right of self defense. Since the Founders established the Second Amendment first and foremost to gaurd our liberties from tyrannical leaders, So called semi-automatics would be THE FIRST WEAPONS THE FOUNDERS WOULD PROTECT IF THEY WERE HERE TODAY! This is not an issue open to lawmakers to decide. Self Defense is given by our creator. If progressives want to believe they evolved from Apes, fine, perhaps then, they can submit their right of self defense to man, but my right to self defense is higher. The Founders understood Tyranny, and if my own government tells me I cannot own an AR-15 or an AK-47 etc, what does that do to my ability to defend myself or my homeland from world soldiers or a government here that could become tryannical? How do handguns and shotguns stack up against ARs etc? They don’t, so it is easy to see that these progressives have horribly jnfringed upon the Second Amendment. On the other hand, the Court’s argument that these guns can do more harm by killers is rediculous. Killers go after the unarmed, so handguns and Shotguns are just as deadly as ARs in that case. We need to end this Judicial tyranny in America now, before it’s too late. Our others branches need to correct this nonsense, or respectably, the people.

  23. It all goes back to the exclusion made in Heller: weapons of war are outside the protection of the 2nd Amendment.

    Personally, I disagree. The very intent of the 2nd Amendment is to protect the citizenry from the possibility of a tyrannical government by protecting their right to bear arms in order to wage war against that tyrannical government should the need arise. But, unfortunately, the majority of justices in Heller saw it differently.

    Kolbe v Hogan is likely a test case on applying the 2A exclusions from Heller to establish limits on gun ownership. Assuming it holds, watch for the other left-leaning states to apply that same restriction in their own jurisdictions (for further reference, follow the actions in California). I’m grateful to live in a red state.

  24. If the decision stands (as in SC refuses to review), does that pretty much break the back of the second amendment? If weapons of war for the militia are outside the second amendment, if the perceived safety of the community permits restrictions on weapons not designed for war, if concealed carry of any weapon is outside the second amendment, are we not left with a constitutional amendment that applies only to hunting and competitions? Has the anti-gun crowd finally won?

    • Only in some parts of America. In other parts, courts have recognized some 2A rights beyond Heller/McDonald. I believe some circuits haven’t made any rulings on the 2A.

      The 2A will never be fully vindicated through the courts. Neither will the 1st, 4th, 5th, … Our best hope (in the courts) is that the 2A will be treated as an equal to the other Constitutional rights.

      • “Our best hope (in the courts) is that the 2A will be treated as an equal to the other Constitutional rights.”

        Thought I had read stories that explained the second amendment is the only one of the enumerated rights that is allowed less than strict scrutiny. Which makes 2A inferior to other constitutional rights.

        • I can’t comment on what you read, but the 1A is often subject to intermediate scrutiny.

          You remember the horrible anti-gay laws passed titled religious freedom restoration act (RFRA)?

          Well the same law was passed by the federal government (I think Clinton was president) in response to a case in which a Native American was fired for using peyote on the Reservation in a religious ceremony. His actions were NOT criminal. He tested positive on a drug test. I think he was employed by the government. (It’s been at least ten years since I read the case). He was fired. He sued over religious discrimination or free exercise. His case went all the way to the Supreme Court where they applied intermediate scrutiny. Congress disagreed and passed RFRA. RFRA basically says apply strict scrutiny.

          There are other situations in which intermediate scrutiny applies to the 1A. “Content neutral” speech is one area. Think laws saying no pamphlets left on car windows because litter.

  25. Putting it perhaps somewhat crudely, certainly bluntly, what the hell is it that goes on in the minds of some of these so-called learned jurists? I really wonder. What world might it be that they reside in? In case anyone wonders, the above questions are seriously offered, they are not simply “throwaways”.

  26. The Incorporation Doctrine, a legal scheme consisting of magical and mystical “rights” found in the 14th Amendment not even known to its authors and ratifiers is killing RKBA. It’s killing the entire Bill of Rights. The B of R was written by the states as a prohibition on the federal government. The states, being sovereign independent nations already had constitutions. What they feared, and rightly so, was losing those protections to the new central government they were creating. The federal government was to have no seat at the conversation table regarding RKBA. This is highlighted best in 1894s Miller v Texas where SCOTUS opined that while Miller may in fact have had his 4th and 2nd amendment rights violated, these did not apply to the state of Texas and only to the federal government. See,here is the problem when “gun people” rely on the federals for “my Second Amendment Rights!” As Justice Marshall opined in Barron v Baltimore, people in the states must look to their own constitutions for these protections as the Bill of Rights are prohibitions on the federal , not state government.
    When you remove the chains of the B of R from the federal government, as the phony Incorporation Doctrine does, you aren’t just freeing them from these eight prohibitions. You are now faced with a government who determines the length and breadth of its former chains. So, where it had no business regulating RKBA, period, you now have even Justice Scalia qualifying limits on this unlimited right that his employer has no business getting involved in. The federal government doesnt expand liberty, it diminishes it. It is now the arbiter of the limits of its former chains. It decided how much freedom is enshrined in the Bill of Rights, exactly the opposite of the ratifier’s intention, plainly expressed in the Preamble to the Bill of Rights.
    Gun people need to begin pushing back against the Incorporation Doctrine. Handle these fights in your state. Don’t run to the federals and ask them to be your liberty enforcer. They have plainly and clearly shown they don’t trust you with freedom and your right of self defense. To enable them further is to one day empower them to take from you the very freedoms you beg them to protect.

    • The people, and the states, have been mere vassals of the central government since 1868. There is no interest of the people, nor politicians in overturning the 14th; done deal. Nibbling at the edges with simple legislation will fail in reality, and fail in court. There might be enough momentum to get state laws enacted that seem to expand “gun rights”, but only because of a hefty core of single-issue voters on the subject of “gun rights”. Just try to talk to anyone (even gun owners) about what the 14th amendment did to the principles of the founders. Most will not understand at all, many will not be interested because it is too complex, and maybe everyone will not be interested because they have nothing specific at risk. “States Rights” as a concept was murdered by the Civil Rights Act of 1964. Whether or not that Act was good, bad, proper, indifferent, it killed any hope of ever again bringing “States Rights” to the conversation because the phrase is forever shorthand/code for racism. Meaning there can be no honest discussion of state and federal interaction based on the constitution prior to 1868.

  27. “Shall not be infringed” does not call for intermediate scrutiny nor for strict scrutiny. It requires a new standard altogether: does the law infringe the right to keep and bear arms or not? If it does, it is UnConstitutional and must be stricken. That’s the end of the inquiry. Anything else is an attempt to re-write the Bill of Rights.

    • cadeyrn:

      Your comment strikes ones ear as does the following. The earth might not be exactly round, though it sure as hell is not flat. Also, despite argument to the contrary, 2 + 2 do equal 4. I wonder as to the source of the court’s “reasoning” here.

    • Seems to me that it is up to the people of Maryland,via tossing out/changing the makeup of their state legislature, which is responsible for enactment of the legislative foolishness here the subject of some discussion..

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