Watch out 9th Circuit! The 4th is a-comin’ fer ya!
San Francisco’s 9th Circuit Court of Appeals has the dubious distinction of being the most overturned court in the Federal judiciary. Over 80% of 9th Circuit rulings reviewed by the Supreme Court get tossed. Not to be outdone, the 4th Circuit issued this ridiculous ruling in the Kolbe case. The court’s en banc panel held that, and I’m paraphrasing a bit here, since “assault weapons” are icky and scary looking, they’re not protected by the 2nd Amendment. The court contends that the affected semi-automatic firearms are “weapons of war” and thus not protected as per Heller.
This is, of course, an incorrect reading of Heller as well as the facts.
While the Heller ruling was narrowly confined to Washington D.C.’s handgun ban, the Court did caution against reading the ruling as only applying to handguns; that the 2nd Amendment may apply to firearms such as semi-automatic rifles. Justice Scalia writes:
Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. See, e.g., Sheldon, in 5 Blume 346; Rawle 123; Pomeroy 152–153; Abbott333. For example, the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues. See, e.g., State v. Chandler, 5 La. Ann., at 489–490; Nunn v. State, 1 Ga., at 251; see generally 2 Kent *340, n. 2; The American Students’ Blackstone 84, n. 11 (G. Chase ed. 1884). Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment , nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.26
We also recognize another important limitation on the right to keep and carry arms. Miller said, as we have explained, that the sorts of weapons protected were those “in common use at the time.” 307 U. S., at 179. We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of “dangerous and unusual weapons.” See 4 Blackstone 148–149 (1769); 3 B. Wilson, Works of the Honourable James Wilson 79 (1804); J. Dunlap, The New-York Justice 8 (1815); C. Humphreys, A Compendium of the Common Law in Force in Kentucky 482 (1822); 1 W. Russell, A Treatise on Crimes and Indictable Misdemeanors 271–272 (1831); H. Stephen, Summary of the Criminal Law 48 (1840); E. Lewis, An Abridgment of the Criminal Law of the United States 64 (1847); F. Wharton, A Treatise on the Criminal Law of the United States 726 (1852). See also State v. Langford, 10 N. C. 381, 383–384 (1824); O’Neill v. State, 16Ala. 65, 67 (1849); English v. State, 35Tex. 473, 476 (1871); State v. Lanier, 71 N. C. 288, 289 (1874).
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.
While “dangerous and unusual” weapons are not protected, those “in common use” are. And “Black rifles” certainly are in common use! There’s a reason why the AR-15 is called “America’s Rifle”.
This ruling is doomed to reversal once it reaches the High Court. There it will join similarly goofy rulings from the 9th Circus. It is nothing more than a temper tantrum issued by a pack of black-robed idiots. But the fact that it will be short lived does not undo the damage that it will cause. There are law abiding citizens within the 4th Circuit’s jurisdiction that are now at risk of having their rights violated while the ruling is in force.
The more long lasting damage is to the law’s reputation. We have mentioned before that laws and court rulings that make a mockery of the law erode respect for the rule of law; and this is a very dangerous situation. A civil society cannot exist in the absence of the rule of law. As upsetting as this might be to some special snowflakes, society needs rules that everyone can follow. Rulings like this one upend the rules. Instead of a Constitution that sets firm limits on the power of Government, the 4th Circuit would replace it with judicial whimsy. This reduces the rule of law to a game of Calvinball.
…which is only funny if a boy and his stuffed tiger are involved. It’s not so funny if you’ve been arrested for something that was legal last Tuesday and might be again at the next new moon.