4th Circuit Rules Common Rifles not Protected by Second Amendment

On 21 February, 2017, the 4th Circuit Court of Appeals ruled that common semi-automatic rifles are not protected by the Second Amendment of the Constitution. The ban includes semi-automatic rifles that can take detachable magazines and have two of these three features: folding stock, grenade/flare launcher, or flash hider.  There is a long list of existing models that are explicitly banned, including all AR15s and variants, and all AK47s and variants. The list of banned guns includes some firearms that are not semi-automatic, such as a version of the Mossberg 500 pump shotgun. The law also bans all detachable magazines that hold more than 10 rounds.

From the decision:

As explained below, we are satisfied to affirm the district court’s judgment, in large part adopting the Opinion’s cogent reasoning as to why the FSA contravenes neither the Second Amendment nor the Fourteenth. We diverge from the district court on one notable point: We conclude — contrary to the now-vacated decision of our prior panel — 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”). Put simply, we have no power to extend Second Amendment protection to the weapons of war that the Heller decision explicitly excluded from such coverage.

The M-16 rifles mentioned in Heller were included in the category “Dangerous and unusual weapons.  From the Heller decision:

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, 16 Ala. 65, 67 (1849); English v. State, 35 Tex. 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.

The problem for the Fourth Circuit decision is that the semi-automatic and other firearms banned are not “dangerous and unusual”. AR15 and similar semi-automatic rifles are the most popular rifles in the United States, numbering about 5-10 million.  There are likely a hundred million standard capacity magazines that hold more than 10 rounds in use in the United States.  The Supreme Court unanimously held, in the Caetano PER CURIAM decision (pdf), that:

The Court has held that “the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding,” District of Columbia v. Heller, 554 U. S. 570, 582 (2008), and that this “Second Amendment right is fully applicable to the States,” McDonald v.Chicago, 561 U. S. 742, 750 (2010).

Rifles, as a group, are arms that are least likely to be used in homicides. The Fourth Circuit cleverly avoided considering that fact by pre-emptively excluding those rifles from the protection of the Second Amendment. Because they excluded the rifles from Second Amendment protection, the Court avoided the requirement to apply strict scrutiny to the law.

From the FBI statistics, Rifles are used to commit homicide far less often then hands and feet, knives, or blunt objects.   In 2014, 248 homicides, total, were committed with all rifles.  Hands and feet were used in 660 homicides. Knives were used in 1,490 homicides. Blunt objects were used in 428.  The numbers have been decreasing for several years.

Semi-automatic rifles are commonly in use, therefore they are not “unusual”. They are far less often used in homicides than pistols, hands and feet, knives, or blunt objects. Therefore they are not “dangerous” in the context that they are more than usually dangerous.  All potential weapons are “dangerous”. In context, dangerous has to mean “more than usually dangerous”.

It is likely the case will be appealed to the Supreme Court.  It is far less likely that they will accept the case.  With an eight member Supreme Court, it is very uncertain that the Supreme Court would overturn this decision.

©2017 by Dean Weingarten: Permission to share is granted when this notice and link are included.

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