Explore The NRA Universe Of Websites

APPEARS IN News

Turning Their Back On The Supreme Court

Tuesday, May 2, 2017

Turning Their Back On The Supreme Court

This feature appears in the May ‘17 issue of NRA America’s 1st Freedom, one of the official journals of the National Rifle Association.  

In February, the full U.S. Court of Appeals for the 4th Circuit upheld the wide-ranging ban on semi-automatic rifles that was enacted in Maryland in 2013. The case was Kolbe v. Hogan.

This was just the latest example of a federal court disregarding the Second Amendment and Supreme Court precedent to uphold a ban on highly popular firearms. But it was also the most egregious and far-reaching decision to date.

Taken to its logical extreme, Kolbe eviscerates the Supreme Court’s ruling in District of Columbia v. Heller and sets the stage for states to ban entire classes of common firearms at will.

It is vital for the Supreme Court to repair the damage caused by the 4th Circuit’s opinion. And that can happen only if President Donald Trump succeeds in getting his Supreme Court nominees confirmed. The nomination of Judge Neil Gorsuch to fill the vacancy left by Justice Antonin Scalia was the first. But there could well be more during Trump’s time in office.

I don’t have to tell the regular readers of this magazine that too many of the lower federal courts have been engaged in massive resistance to the Heller decision.

But if you’re now just beginning to follow this issue, you don’t have to take my word for it. The justices who voted with the majority in Heller have expressed their exasperation with the lower courts and with their colleagues who have repeatedly refused to take corrective action.

In order for the U.S. Supreme Court to hear a case, four out of nine justices must agree. Unfortunately, that hasn’t happened since our landmark victory in McDonald v. Chicago. This is one of the reasons why it’s so important to fill the Scalia seat with a pro-gun justice like Gorsuch.

 In Jackson v. City and County of San Francisco, the 9th Circuit Court of Appeals upheld a San Francisco gun-storage law similar to the one invalidated in Heller. Despite the obvious inconsistencies between the two outcomes, the Supreme Court refused to take the case. Justice Clarence Thomas—joined by Scalia—dissented from the decision not to hear the case in June 2015.

“Because Second Amendment rights are no less protected by our Constitution than other rights enumerated in that document,” Thomas wrote, “I would have granted this petition.”

“The decision of the Court of Appeals is in serious tension with Heller,” he continued, and he then reminded his colleagues of Heller’s admonition that a “constitutional guarantee subject to future judges’ assessments of its usefulness is no constitutional guarantee at all.”

Thomas and Scalia teamed up on another such dissent in December 2015. This time the case was Friedman v. Highland Park, which upheld a gun ban very similar to the one at issue in Kolbe.

Thomas took the occasion to criticize the cursory review lower courts had been giving to broad gun bans in the wake of Heller and McDonald.

“Despite these holdings, several Courts of Appeals—including the Court of Appeals for the 7th Circuit in the decision below—have upheld categorical bans on firearms that millions of Americans commonly own for lawful purposes,” Thomas stated. “Because noncompliance with our Second Amendment precedents warrants this Court’s attention as much as any of our precedents, I would grant certiorari in this case.”

Thomas then elaborated on the 7th Circuit’s “noncompliance,” noting, “Instead of adhering to our reasoning in Heller, the 7th Circuit limited Heller to its facts, and read Heller to forbid only total bans on handguns used for self-defense in the home.” Yet Justice Scalia had been clear that the relevant inquiry is broader than that, i.e., “whether the law bans types of firearms commonly used for a lawful purpose—regardless of whether alternatives exist.”

Applying that test to the Highland Park ban, Thomas stated:

“Roughly 5 million Americans own AR-style semi-automatic rifles. … The overwhelming majority of citizens who own and use such rifles do so for lawful purposes, including self-defense and target shooting. … Under our precedents, that is all that is needed for citizens to have a right under the Second Amendment to keep such weapons.”

Ironically, when the Supreme Court unexpectedly did take another Second Amendment-related case in March of 2016, the facts didn’t concern firearms at all, but rather a stun gun ban from Massachusetts. Caetano v. Massachusetts held in an unsigned summary opinion that the state court could not use the fact that stun guns did not exist at the time of the Second Amendment’s adoption to find that they are not “in common use” or that they are too “unusual” to receive Second Amendment protection.

The Supreme Court also faulted the Massachusetts court for relying on the theory that stun guns are not “readily adaptable to use in the military” to find that they fall outside the  Second Amendment’s purview. Heller, the court stated, “rejected the proposition that only those weapons useful in warfare are protected.”

This time, Justice Samuel Alito, joined by Thomas, issued a separate concurring opinion (Scalia had passed away in February 2016). That opinion reiterated Heller’s holding on what “arms” receive Second Amendment protection. Alito wrote: “the pertinent Second Amendment inquiry is whether stun guns are commonly possessed by law-abiding citizens for lawful purposes today.” Thomas and Alito also would have held that because “stun guns are widely owned and accepted as a legitimate means of self-defense across the country, Massachusetts’ categorical ban of such weapons … violates the Second Amendment.”

Yet the 4th Circuit in Kolbe rejected the straightforward test of whether the banned “arms” are in common use for lawful purposes, a test that has been articulated time and again. Instead, it created an entirely new standard, the likes of which had never before been used to resolve a Second Amendment case.

Incredibly, the court insisted that AR-15s and similar semi-automatic rifles receive no Second Amendment protection whatsoever because they are “like M-16 rifles,” that is, “weapons that are most useful in military service.”

It’s difficult to overstate just how wrong this reasoning is. So let me mention just a few problems with it.

First, and most obviously, Heller rejected using this type of reasoning to resolve the question of whether D.C.’s handgun ban withstood the Second Amendment. To the contrary, it said that handguns receive Second Amendment protection because they are a “class of ‘arms’ that is overwhelmingly chosen by American society” for self-defense.

It also elaborated on a prior Supreme Court case, U.S. v. Miller, which analyzed the Second Amendment status of short-barreled shotguns. Miller, Heller recalled, stands for the proposition that the Second Amendment right “extends only to certain types of weapons,” i.e., those “‘in common use at the time’ for lawful purposes like self-defense.”

Heller mentioned M-16s only in passing, and even those statements did not establish any precedential legal standard, as the M-16’s constitutional status was not at issue in the case. “It may be objected that if weapons that are most useful in military service—M-16 rifles and the like—maybe banned, then the Second Amendment right is completely detached from the prefatory clause,” the court stated. “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.”

The Supreme Court was simply making the point that in contemporary America, handguns—unlike M-16s—are the sort of firearms Americans typically possess at home. And it’s no surprise the court would use the M-16 to illustrate this point, as it is within the class of machine guns that have been banned under federal law since 1986.

The AR-15, by contrast, is not a machine gun. It is legal in the vast majority of American states and has been readily available in various forms since the 1960s. Like other repeating firearms, it fires one shot per trigger pull.

And not only is the AR-15 not “most useful” for military service, it’s not fielded by any military force.

But other popular civilian firearms are considered indispensable to America’s fighting forces, including semi-automatic handguns, semi-automatic shotguns, and bolt-action rifles. Depending on mission requirements, any one of them could be considered “most useful for military service.”

And that means under the 4th Circuit’s Kolbe analysis, any one of them could also be banned.

Until the Supreme Court steps back into the arena of Second Amendment jurisprudence, the lower federal courts are likely to continue to undermine our right to keep and bear arms. This is why it’s so important to confirm pro-gun justices to the court.

 

Chris W. Cox

BY Chris W. Cox

NRA-ILA Executive Director

Follow This Contributor

Chris W. Cox has served as the executive director of the Institute for Legislative Action, the political and lobbying arm of NRA, since 2002. As NRA’s principal political strategist, Cox oversees eight NRA-ILA divisions: Federal Affairs; State & Local Affairs; Public Affairs; Grassroots; Finance; Research & Information; Conservation, Wildlife & Natural Resources; and Office of Legislative Counsel. Cox also serves as chairman of NRA’s Political Victory Fund (NRA-PVF), the Association’s political action committee; president of the NRA Freedom Action Foundation (NRA-FAF), which focuses on non-partisan voter registration and citizen education; and chairman of NRA Country, an effort to bring country music artists together with NRA members in support of our Second Amendment freedoms and hunting heritage.

TRENDING NOW
Reuniting The United States With Reciprocity

Wednesday, September 20, 2017

Reuniting The United States With Reciprocity

Most concealed-carry permit holders understand the potential pitfalls of traveling with a firearm, given the outrageous patchwork of state laws involved in even a short interstate trip. And while we haven’t posted much about reciprocity ...

National Reciprocity Bill Nears Goal Line in the House but Needs Your Support to Reach the End Zone

News  

Friday, September 15, 2017

National Reciprocity Bill Nears Goal Line in the House but Needs Your Support to Reach the End Zone

Gun owners received good news this week with the passage of the SHARE Act by the U.S. House Committee on Natural Resources (see related story). Meanwhile, progress continued to be made on another NRA legislative ...

House Committee Passes SHARE Act by Wide Margin

Hunting  

News  

Friday, September 15, 2017

House Committee Passes SHARE Act by Wide Margin

As we have reported, this year’s version of the SHARE Act is the most expansive and far-reaching yet. Besides previously-introduced provisions aimed at enhancing opportunities for hunting, fishing, and shooting and broadening access to federal lands ...

Urban Myth: Crime Doesn’t Pay – California City Authorizes Stipends to Gang Members

News  

Friday, September 15, 2017

Urban Myth: Crime Doesn’t Pay – California City Authorizes Stipends to Gang Members

In a special meeting on August 29, the nine-member City Council of Sacramento unanimously agreed to allocate $1.5 million in funding and to move forward with a “gun-violence reduction strategy” that will include cash payments ...

Bloomberg Spending Millions To Elect Anti-Gun Virginia Governor

News  

Wednesday, September 20, 2017

Bloomberg Spending Millions To Elect Anti-Gun Virginia Governor

Billionaire anti-gunner Michael Bloomberg is at it again, pledging to spend $1 million through his gun control group Everytown for Gun Safety in an attempt to impact Virginia’s upcoming elections for governor and attorney general.

Anti-Gun Politicians: Blocking Out The Facts About Suppressors

Hunting  

Thursday, September 21, 2017

Anti-Gun Politicians: Blocking Out The Facts About Suppressors

As soon as the Hearing Protection Act was put forward on Jan. 9, 2017, leftists came out of the woodwork to criticize and misconstrue the goals of those who supported removing suppressors from the auspices ...

Wisconsin: Constitutional Carry Passes Committee Vote

Tuesday, September 19, 2017

Wisconsin: Constitutional Carry Passes Committee Vote

Today, Senate Bill 169 passed the Senate Judiciary Committee with a vote of 3-2.  SB 169 would allow for the concealed carry of a firearm without a concealed carry license anywhere in the state where ...

NRA Backed SHARE Act Passes Committee

News  

Wednesday, September 13, 2017

NRA Backed SHARE Act Passes Committee

“Today marks an important step in protecting the Second Amendment freedoms of America’s hunters and sportsmen and strengthening our outdoor heritage,” said Chris W. Cox, executive director, NRA-ILA. “The SHARE Act will cut burdensome red tape that restricts ...

NRA Applauds Reintroduction and Expansion of SHARE Act

News  

Hunting  

Friday, September 8, 2017

NRA Applauds Reintroduction and Expansion of SHARE Act

On Sept. 1, U.S. Congressman Jeff Duncan introduced H.R. 3668, the Sportsman’s Heritage and Recreational Enhancement Act (SHARE Act), a wide-ranging package of legislation aimed at promoting Second Amendment rights and America’s outdoor sporting traditions.

Wall Street Journal/NBC News Poll Throws Wrench in Anti-gun Agenda

News  

Friday, September 8, 2017

Wall Street Journal/NBC News Poll Throws Wrench in Anti-gun Agenda

Demonstrating the importance of the gun issue to the American electorate, 35 percent of respondents reported that “gun rights or gun control” had an impact on their voting behavior. The issue was the highest-rated answer, ...

MORE TRENDING +
LESS TRENDING -
NRA ILA

Established in 1975, the Institute for Legislative Action (ILA) is the "lobbying" arm of the National Rifle Association of America. ILA is responsible for preserving the right of all law-abiding individuals in the legislative, political, and legal arenas, to purchase, possess and use firearms for legitimate purposes as guaranteed by the Second Amendment to the U.S. Constitution.