Ever since the U.S. Supreme Court’s opinions in Heller and McDonald, many of the lower U.S. courts have been making up their own rules when it comes to the Second Amendment. Tuesday’s outrageous opinion by the full U.S. Court of Appeals for the Fourth Circuit in Kolbe v. Hogan is yet another example of this. In that case, nine of out fourteen judges ruled that America’s most popular types of rifles, banned in the state of Maryland, have no Second Amendment protection.
The Court called the banned firearms – which include AR-15s and most magazine-fed semi-automatic rifles – “exceptionally lethal weapons of war.” It compared them to the M16, which the court claimed made them categorically unprotected by the U.S. Supreme Court’s decision in Heller. The Court called the difference between a machine gun and a semi-automatic “slight”, despite the substantial differences in function and form, so much so that the federal law regulates each in highly dissimilar ways.
And in doing so, the judges joining the majority opinion actually said that they do not consider themselves bound by the Supreme Court’s majority decision in Heller (to say nothing of their sworn oath to uphold the Constitution).
Heller, of course, concerned the most demonstrably lethal and crime-associated of all firearms: the handgun. Handguns are implicated in more deaths, and more firearm-related crimes, than all other types of firearms combined … by a very large margin. This was extensively briefed for the Supreme Court during the Heller proceedings, and no one contested that argument. The NRA, on behalf of a free people, will continue to vindicate the rights of all law-abiding Americans to keep and bear the best firearms available to protect themselves and their loved ones. As we’ve been there every step of the way in the Kolbe fight, we will continue to press forward, including appealing the issue to the U.S. Supreme Court.
Moreover, the majority opinion in Heller did not shrink from these facts. The opinion’s author, Justice Scalia, put it very plainly: “We are aware of the problem of handgun violence in this country, and we take seriously the concerns raised by the many amici who believe that prohibition of handgun ownership is a solution.” He continued: “But the enshrinement of constitutional rights necessarily takes certain policy choices off the table. These include the absolute prohibition of handguns held and used for self-defense in the home.”
In other words, the fact that criminals exploit handguns for their own evil purposes could not overcome the fact that responsible, law-abiding Americans also choose them to defend themselves, their families, and their homes.
Heller also counsels against policy-makers picking and choosing among firearm types when enacting prohibitions. “It is no answer to say, as petitioners do, that it is permissible to ban the possession of handguns so long as the possession of other firearms (i.e., long guns) is allowed,” Scalia wrote. “It is enough to note, as we have observed, that the American people have considered the handgun to be the quintessential self-defense weapon.”
In the post-Heller era, the same could be said of the detachable magazine-fed semi-automatic rifles of the type banned in Maryland. They’re not just popular guns, they’re the most popular types of rifles on the market today. And the fact that many, many millions reside in the hands of Americans, with such a miniscule percentage used in violent crime, show that they are overwhelmingly kept and used for lawful purposes.
But the Fourth Circuit disregarded all this, and instead chose to follow Justice Breyer’s dissenting opinion in Heller. Breyer insisted that even if the majority was right that Second Amendment protects an individual right grounded in self-defense, “the District's regulation … represents a permissible legislative response to a serious, indeed life-threatening, problem.”
Of course, virtually every author of every gun control law that has ever been passed or proposed has claimed the measure is a matter of life and death. Never mind that few can show any actual evidence their proposed restrictions will save lives. And even if they could, Heller could not be clearer that this claim does not end the matter when it comes to banning the sorts of arms commonly kept by law-abiding citizens for lawful purposes. The majority very specifically rejected Breyer’s attempts to use inapt analogies and “interest-balancing” to preserve D.C.’s handgun ban.
Inapt analogies and interest-balancing, however, are exactly the techniques employed by the Kolbe majority. They counterfactually try to analogize AR-15s to M16s and other “weapons of war,” and then they insist such firearms can be subject to a ban because they’re dangerous. It’s likely that any ban of any type of firearm – and under any circumstances – would survive this shallow and self-serving rationale.
If, as the Fourth Circuit suggests, a firearm loses Second Amendment protection because it is specifically designed for “killing or disabling the enemy,” then the whole idea of the Second Amendment protecting a defensive purpose (or applying to any well-designed firearm, for that matter) collapses. Handguns, rifles, and shotguns of any type can be equally “dangerous.”
It’s bad enough that the Fourth Circuit considers the choices actually made by law-abiding people irrelevant when it comes to the Second Amendment, contrary to the clear admonition of Heller.
Yet the court’s reasoning is worse than that. It challenges the very notion of freedom itself and the ability of a free people to govern themselves and make their own choices from available alternatives. It puts the people who vote and pay taxes and follow the law below the government that is supposed to serve them and below the criminals who will use every available means to prey upon them. It empowers the courts to decide, on a case-by-case basis, what firearms are “safe” enough for a free people to be trusted to own.
The NRA, on behalf of a free people, will continue to vindicate the rights of all law-abiding Americans to keep and bear the best firearms available to protect themselves and their loved ones. As we’ve been there every step of the way in the Kolbe fight, we will continue to press forward, including appealing the issue to the U.S. Supreme Court.