The Fourth Circuit Court of Appeals upheld the ban on so called “Assault Weapons” (commonly owned semi-automatic rifles) and on standard capacity magazines that hold over 10 rounds of ammunition. The petitioners in that case, Stephen V. Kolbe v. Lawrence J. Hogan, JR., have decided to appeal the decision to the U.S. Supreme Court.
Such an appeal is called a writ of Certiorari. Most appeals are rejected by the Supreme Court.
In the Fourth Circuit decision, the appeals court claimed that semi-automatic rifles and magazines with a capacity of more than 10 rounds fell outside the protection of the Second Amendment.
This is directly contrary to the decision in U.S. v. Heller, though the Fourth Circuit claimed the opposite based on a fragment of a sentence in the Heller decision. From the petition:
Maryland has banned the most popular semi-automatic rifles and magazines – arms that are indisputably in common use for self-defense – from the homes of its law-abiding citizens.
According to the Fourth Circuit, it was “compelled by Heller to recognize that those weapons and magazines are not constitutionally protected,” App.49, and, therefore, to hold that these common, popular firearms fall outside the Second Amendment and can be banned from the home because they are “ ‘like’ ‘M-16 rifles’ and ‘most useful in military service.’ ” App.61.
The Fourth Circuit’s decision misinterprets and conflicts with Heller and its progeny, as well as with the decisions of other Courts of Appeals, on a central question addressed in Heller: What arms are protected by the core right of the Second Amendment – the right of law-abiding citizens to keep arms in common use for self-defense in the home.
Heller struck down a prohibition on the firearms most commonly chosen for self-defense – handguns – even though handguns are arguably more “dangerous” than other firearms, and even though firearms other than handguns remained available for use in self-defense.
This Court recognized and protected the principle at the heart of the interests enshrined by the Second Amendment: The individual – and not the government – retains the right to choose from among common arms those that they believe will best protect their person, family, and home. Id. at 629 (“Whatever the reason, handguns are the most popular weapon chosen by Americans for self-defense in the home, and a complete prohibition of their use is invalid.”).
This is an area of law the Supreme Court should address. Handguns are used in crime, murder and even mass killings far more often than semi-automatic rifles. If handguns are protected by the Second Amendment, it would be absurd to conclude that semi-automatic rifles and standard capacity magazines are not.
Moreover, the Second Amendment has a clear military component. If one purpose of the Second Amendment is to be able to form effective militias, then the right to keep and bear effective militia weapons is protected. Semi-automatic rifles are the epitome of a militia weapon.
In a case reviewed by the Supreme Court, but not addressed by the Fourth Circuit, the Supreme Court unanimously held, in the Caetano PER CURIAM decision (pdf), that:
The Court has held that “the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding,” District of Columbia v. Heller, 554 U. S. 570, 582 (2008), and that this “Second Amendment right is fully applicable to the States,” McDonald v.Chicago, 561 U. S. 742, 750 (2010).
Rifles, as a group, are arms that are least likely to be used in homicides. The Fourth Circuit cleverly avoided considering that fact by preemptively excluding those rifles from the protection of the Second Amendment. Because they excluded the rifles from Second Amendment protection, the Court avoided the requirement to apply strict scrutiny to the law.
The Supreme Court has been reluctant to hear Second Amendment cases. They recently refused to hear the Peruta case from the Ninth Circuit.
No one knows if the Court will grant the petition for a writ of certiorari in this case. The reluctance to hear Second Amendment cases may change if President Trump appoints another Justice Gorsuch to the Court.
©2017 by Dean Weingarten: Permission to share is granted when this notice and link are included. Gun Watch