A Voice of Reason on the Second Amendment

Ruger SR556, a semi-automatic AR-15 style rifle

Ruger SR556, a semi-automatic AR-15 style rifle

The State of Maryland, in reaction to the Sandy Hook and other mass shootings, adopted the Maryland Firearm Safety Act of 2013 (the “FSA”). The law banned the AR-15 and other military-style rifles and shotguns commonly known as “assault weapons” and detachable large-capacity magazines.

America’s gun lovers couldn’t have that. They sued in Federal court in Kolbe v. Hogan, claiming the FSA violated the Second and Fourteenth Amendments. A disturbing number of states joined in the attack of their sister state. Including WC’s home state of Alaska and adopted home of Idaho. (You’d think Alaska, suffering through a pretty bad recession and terrible cuts to state government, could have found a more useful way to spend money than fighting with an Atlantic seaboard state trying to stem the slaughter of innocents. Apparently you’d have thought wrong.)

U.S. District Judge Catherine C. Blake found the FSA was constitutional. The gun lovers appealed. After fussing around a while, the Fourth Circuit Court of Appeals – not exactly a “liberal” circuit – heard the appeal en banc, meaning all fourteen sitting judges, not just a three judge panel. And ruled 12-4 that Maryland’s Firearms Safety Act violated neither the Second or Fourteenth Amendments to the U.S. Constitution. The heart of the majority’s decision is caught in a single sentence:

Put simply, we have no power to extend Second Amendment protection to the weapons of war that the [U.S. Supreme Court’s] Heller decision explicitly excluded from such coverage.

WC strongly believes that District of Columbia v. Heller – the U.S. Supreme Court decision prohibiting anything like an outright ban on private firearms – is as wrong-headed as Citizens United. But the 4th Circuit in Kolbe cleverly places its decision in an exception the SCOTUS created in the Heller decision:

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”).

The majority decision in Kolbe is carefully reasoned, meticulously argued and walks the legal slalom course that the SCOTUS created in Heller with considerable skill. The four dissenting judges are left to protest that the SCOTUS didn’t mean what it said. What’s particularly clever is the way the majority turns the Heller court’s originalist arguments against the gun lovers. Long time readers know WC is not a fan of the late Justice Antonin Scalia’s originalist ideas. It’s amusing to see them discredited by application.

Doubtlessly, the disappointed appellants in Kolbe will petition for certiorari to the U.S. Supreme Court. WC thinks it is possible, but unlikely, that the U.S. Supreme Court would grant such a petition. The Heller majority is having a Lady McBeth moment just now, trying to wash off the blood of dozens of innocent school children murdered under color of Heller. If the SCOTUS did hear the appeal, they’d have to recant the originalism that underpins Heller. A nice legal cleft stick.

In the meantime, Maryland has a sensible, constitutional law on the books that may help. It’s an imperfect solution, because it is far too easy to transport those weapons of war from adjoining states that value access to weapons of war more than the lives of their children. But it is a start.



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