The Fourth Circuit’s Evisceration of the Second Amendment

This week, the Fourth Circuit Court of Appeals, sitting en banc, issued a decision upholding a Maryland ban on “the AR-15 and other military-style rifles and shotguns” as well as “detachable large-capacity magazines.” The opinion ignores the basic reasoning of the Supreme Court case that upheld Second Amendment rights: D.C. v. Heller. The Fourth Circuit’s opinion opens with this rhetorical flourish:

On the morning of December 14, 2012, in Newtown, Connecticut, a gunman used an AR 15-type Bushmaster rifle and detachable thirty-round magazines to murder twenty first-graders and six adults in the Sandy Hook Elementary School. Two additional adults were injured by gunfire, and just twelve children in the two targeted classrooms were not shot. Nine terrified children ran from one of the classrooms when the gunman paused to reload, while two youngsters successfully hid in a restroom. Another child was the other classroom’s sole survivor. In all, the gunman fired at least 155 rounds of ammunition within five minutes, shooting each of his victims multiple times.

One could easily list atrocities committed with pistols as well. Indeed, research shows that mass shootings are usually committed with pistols:

[Researchers] found that the typical weapon used is a pistol, not an “assault weapon” like the semi-automatic AR-15 rifle. Assault weapons were used in 24.6 percent of mass shootings, handguns in 47.9 percent.

But the court’s dramatic opening is not designed to further constitutional analysis. It is there to promote a political agenda.

In its legal analysis, the opinion seizes on this single sentence from 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.

Divorcing that sentence from all context, the majority uses it to repeatedly assert that there is no right to own a weapon that — from the rarefied perspective of a federal judge’s chambers — might be deemed to be “most useful in military service.” And with a little hocus-pocus, the court decides that AR-15s are “most useful in military service” and are like M-16s. Here is a part of the judges’ totally out-of-touch reasoning, which demonstrates why lefty judges are not particularly suited to writing about firearms:

[S]emiautomatic weapons can be fired at rates of 300 to 500 rounds per minute, making them virtually indistinguishable in practical effect from machineguns.

Yuh-huh. Sure they can. As David French observes:

The word “rates” does a lot of work in that sentence. Yes, a person can pull the trigger very quickly on a semi-auto rifle (of any type) for a very short time. No, you cannot send 300 to 500 rounds downrange in one minute. You can’t even do it with an M-16 in burst mode.

In any event, limiting the analysis to what is “most useful in military service” simply isn’t what Justice Scalia said in Heller — if you look at the sentence in context:

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.” [citations omitted]

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.

AR-15s are hardly “dangerous and unusual” — because the word “and” means they have to be unusual, and they aren’t unusual at all. They are the most popular firearms in the United States, which makes it a little difficult to call them “unusual.” Similarly, magazines holding more than 10 rounds are exceedingly common, with the dissent stating that “there are more than 75 million such magazines owned by [American citizens] in the United States.” But the majority cheerfully admits that “we simply de-emphasize the term ‘dangerous and unusual’” in favor of the “most useful in military service” language that they like better — ignoring the fact that the latter phrase is a function of the former.

It’s rare that a court so brazenly announces that it is “de-emphasizing” a central part of a majority Supreme Court opinion. The dissent aptly states what is at stake:

Today the majority holds that the Government can take semiautomatic rifles away from law-abiding American citizens. In South Carolina, North Carolina, Virginia, West Virginia and Maryland, the Government can now tell you that you cannot hunt with these rifles. The Government can tell you that you cannot shoot at targets with them. And, most importantly, the Government can tell you that you cannot use them to defend yourself and your family in your home. In concluding that the Second Amendment does not even apply, the majority has gone to greater lengths than any other court to eviscerate the constitutionally guaranteed right to keep and bear arms.

Indeed.

I’d wager this case is likely to be taken up by the Supreme Court, and with a Justice Neil Gorsuch on the Court, I would predict this ruling will be reversed, as it should be.

It’s a stark reminder that there are some very, very good things that result from the election of one Donald J. Trump.

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