Fourth Circuit Court of Appeals Rules against MSRs

[Triphammer]

The Fourth Circuit Court of Appeals held today that ARs and such are not protected by the 2nd. As good as Heller has been for us in reaffirming the civil right of firearms ownership as well as the human right of self defense, I was always worried the wording would obscure the true intent of the 2nd- to keep an over reaching government in check to some degree by having a citizenry that can effectively push back.

ETA
https://blog.princelaw.com/2017/02/21/4th-circuit-issues-devastating-opinion-regarding-assault-rifles/

[AmbulanceDriver]

The Fourth Circuit Court of Appeals held today that ARs and such are not protected by the 2nd. As good as Heller has been for us in reaffirming the civil right of firearms ownership as well as the human right of self defense, I was always worried the wording would obscure the true intent of the 2nd- to keep an over reaching government in check to some degree by having a citizenry that can effectively push back.

ETA
https://blog.princelaw.com/2017/02/21/4th-circuit-issues-devastating-opinion-regarding-assault-rifles/

I suspect that SCOTUS (especially if Gorsuch is confirmed) will slap this one down pretty hard.  I think this one flies pretty hard in the face of Heller language regarding arms "in common use at the time".

[Hawkmoon]

That's IF the SCOTUS agrees to hear it ...

[230RN]

...Amendment Due Process and Equal Protection claim. (Quick note to the readers, the use of the terms “assault rifles”, “military-style rifles and shotguns” and “large capacity magazines” are being used in reference to the Court opinion and not the author’s belief that these firearms and magazines should be referred to as such).

Man, oh, man, I wish you guys would proofread and edit your sh|t better.

No kiddin'.

[Perd Hapley]

I suspect that SCOTUS (especially if Gorsuch is confirmed) will slap this one down pretty hard.  I think this one flies pretty hard in the face of Heller language regarding arms "in common use at the time".

Not to mention that Constitutional language that says something about those arms having something to do with the militia.

We need a much better ruling than Scalia's hot mess of a Heller Decision.

[MillCreek]

http://blogs.findlaw.com/fourth_circuit/2017/02/assault-weapons-arent-protected-by-the-second-amendment-4th-cir-holds.html?utm_source=feedburner&utm_medium=feed&utm_campaign=Feed%3A+FindLawWrit+%28FindLaw+News+for+Legal+Professionals%29&utm_content=FeedBurner

[Pb]

I suspect that SCOTUS (especially if Gorsuch is confirmed) will slap this one down pretty hard.  I think this one flies pretty hard in the face of Heller language regarding arms "in common use at the time".

Even when Scalia was alive the supremes refused to overturn any of the following:
1) the Fed bans on 18-20 year olds buying pistols in a gun store
2) bans on carrying pistols / "may issue" CC
3) any sort of assault weapon or magazine bans

We are going to need more Judges drop dead and be replaced by Trump before anything more good happens at the Supreme Court.

It is sad that these clowns think RKBA doesn't apply to the most popular rifle in America.

[Perd Hapley]

It is sad that these clowns think RKBA doesn't apply to the most popular rifle in America.

It's sad they won't admit that the more "military-style" and scary a rifle is, the more clearly the second amendment protects the right to own it.

[KD5NRH]

Not to mention that Constitutional language that says something about those arms having something to do with the militia.

Exactly; wasn't that pretty much the pathetically badly argued result of Miller anyway, since his lawyer didn't even try to argue that SBSs have been frequently used by the military to clear trenches?

[Hawkmoon]

Not to mention that Constitutional language that says something about those arms having something to do with the militia.

We need a much better ruling than Scalia's hot mess of a Heller Decision.

Between the Heller decision and the McDonald decision, the SCOTUS has pretty effectively blown that militia connection out of the water.

https://www.supremecourt.gov/opinions/07pdf/07-290.pdf

1. The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally  lawful  purposes,  such  as  self-defense  within  the  home. Pp. 2–53.
(a) The Amendment’s prefatory clause announces a purpose, but does not limit or expand the scope of the second part, the  operative clause. The  operative clause’s text and history demonstrate that it connotes an individual right to keep and bear arms.  Pp. 2–22.

That wasn't the problem with Scalia's Heller decision. The problem areas were:

2. Like most rights, the Second Amendment right is not unlimited. It is not a right to keep and carry any weapon whatsoever in any manner whatsoever  and for whatever purpose:   For  example,  concealed weapons prohibitions have been upheld under the Amendment or state  analogues. The Court’s opinion should not 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.

And

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.

If the Second Amendment is not unlimited, then WTF does "shall not be infringed" mean?

The decision is 157 pages long. I remember reading something in it, which I can't find now, about the case not addressing other "presumptively lawful" firearms regulations. That, along with the "no right is unlimited" part, is the source of the problems with Heller, because lower courts are relying on "presumptively lawful" as justification to declare other anti-gun laws a having been blessed by the SCOTUS when, in fact, all Mr. Scalia was saying was "We haven't looked at those yet."

[Perd Hapley]

Between the Heller decision and the McDonald decision, the SCOTUS has pretty effectively blown that militia connection out of the water.

https://www.supremecourt.gov/opinions/07pdf/07-290.pdf

That's not the militia connection I'm talking about. I mean that the militia clause tells us what kind of arms are primarily in view. If the right doesn't apply to weapons that are "military-style," it's very odd that the authors prefaced it on the importance of having a militia. It's not as if owning a goose gun contributes to a well-regulated militia more than owning an assault rifle does.

[Hawkmoon]

That's not the militia connection I'm talking about. I mean that the militia clause tells us what kind of arms are primarily in view. If the right doesn't apply to weapons that are "military-style," it's very odd that the authors prefaced it on the importance of having a militia. It's not as if owning a goose gun contributes to a well-regulated militia more than owning an assault rifle does.

Scalia actually leans in that direction toward the end of Heller.

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.

Mr. Scalia didn't go nearly far enough, and he couldn't -- he had to keep Kennedy on board. The history of the Second Amendment has to include what the Founders were saying and writing at the time the 2A was adopted. And that necessarily brings us to Tench Coxe:

"The militia of these free commonwealths, entitled and accustomed to their arms, when compared with any possible army, must be tremendous and irresistible. Who are the militia? Are they not ourselves? Is it feared, then, that we shall turn our arms each man against his own bosom. Congress have no power to disarm the militia. Their swords, and every other terrible implement of the soldier, are the birth-right of an American ... the unlimited power of the sword is not in the hands of either the federal or state governments, but, where I trust in God it will ever remain, in the hands of the people."

"Every  other terrible implement of the soldier." In colonial times, often a member of the landed gentry owned a cannon, and that became the crew served weaponry of that town's militia. If in 1790 Squire Abernathy could own -- and practice with -- a cannon, how is that different in principle from John Doe today owning and practicing with a howitzer, an Abram's tank, or a Hawk missile battery?

[KD5NRH]

It's not as if owning a goose gun contributes to a well-regulated militia more than owning an assault rifle does.

Depends on how high the enemy's drones fly.

[Firethorn]

Exactly; wasn't that pretty much the pathetically badly argued result of Miller anyway, since his lawyer didn't even try to argue that SBSs have been frequently used by the military to clear trenches?

The argument wasn't made because by the time it hit the supreme court, Miller had already passed away and the lawyer out of money.

The state got to make arguments in Miller unopposed.

[Hawkmoon]

The argument wasn't made because by the time it hit the supreme court, Miller had already passed away and the lawyer out of money.

The state got to make arguments in Miller unopposed.

Correct. The gubmint got a walkover.

[Perd Hapley]

The argument wasn't made because by the time it hit the supreme court, Miller had already passed away and the lawyer out of money.

The state got to make arguments in Miller unopposed.

So, kind of like Roe v Wade and Doe v Bolton.

[RoadKingLarry]

They made their ruling, now let them enforce it.
Come and take it!