Fourth Circuit
Court of Appeals Ignores Heller: No Protection for Guns It Deems “Dangerous”
Wednesday, February 22, 2017
Ever since the U.S. Supreme Court’s
opinions in Heller and McDonald, many of the lower U.S. courts have been
making up their own rules when it comes to the Second Amendment. Tuesday’s
outrageous opinion by the full U.S. Court of Appeals for the Fourth Circuit in
Kolbe v. Hogan is
yet another example of this. In that case, nine of out fourteen judges ruled
that America’s most popular types of rifles, banned in the state of Maryland,
have no Second Amendment protection.
The Court called the banned firearms – which include
AR-15s and most magazine-fed semi-automatic rifles – “exceptionally lethal
weapons of war.” It compared them to the M16, which the court claimed made them
categorically unprotected by the U.S. Supreme Court’s decision in Heller. The
Court called the difference between a machine gun and a semi-automatic
“slight”, despite the substantial differences in function and form, so much so that
the federal law regulates each in highly dissimilar ways. The NRA, on
behalf of a free people, will continue to vindicate the rights of all
law-abiding Americans to keep and bear the best firearms available to protect
themselves and their loved ones. As we’ve been there every step of
the way in the Kolbe fight, we will continue to press forward, including
appealing the issue to the U.S. Supreme Court.
And in doing so, the judges joining the majority opinion
actually said that they do not consider themselves bound by the Supreme Court’s
majority decision in Heller (to say nothing of their sworn oath to uphold the
Constitution).
Heller, of course, concerned the most demonstrably lethal
and crime-associated of all firearms: the handgun. Handguns are implicated in
more deaths, and more firearm-related crimes, than all other types of firearms
combined … by a very large margin. This was extensively briefed for the Supreme
Court during the Heller proceedings, and no one contested that argument.
The NRA, on behalf of a free people, will continue to
vindicate the rights of all law-abiding Americans to keep and bear the best
firearms available to protect themselves and their loved ones. As
we’ve been there every step of the way in the Kolbe fight, we will continue to
press forward, including appealing the issue to the U.S. Supreme Court.
Moreover, the majority opinion in Heller did not shrink
from these facts. The opinion’s author, Justice Scalia, put it very plainly:
“We are aware of the problem of handgun violence in this country, and we take
seriously the concerns raised by the many amici who believe that prohibition of
handgun ownership is a solution.” He continued: “But the enshrinement of
constitutional rights necessarily takes certain policy choices off the table.
These include the absolute prohibition of handguns held and used for
self-defense in the home.”
In other words, the fact that criminals exploit handguns
for their own evil purposes could not overcome the fact that responsible,
law-abiding Americans also choose them to defend themselves, their families,
and their homes.
Heller also counsels against policy-makers picking and
choosing among firearm types when enacting prohibitions. “It is no answer
to say, as petitioners do, that it is permissible to ban the possession of
handguns so long as the possession of other firearms (i.e., long guns) is
allowed,” Scalia wrote. “It is enough to note, as we have observed, that the
American people have considered the handgun to be the quintessential
self-defense weapon.”
In the post-Heller era, the same could be said of the
detachable magazine-fed semi-automatic rifles of the type banned in Maryland.
They’re not just popular guns, they’re the most popular types of rifles on the
market today. And the fact that many, many millions reside in the hands of
Americans, with such a miniscule percentage used in violent crime, show that
they are overwhelmingly kept and used for lawful purposes.
But the Fourth Circuit disregarded all this, and instead
chose to follow Justice Breyer’s dissenting opinion in Heller. Breyer insisted
that even if the majority was right that Second Amendment protects an individual
right grounded in self-defense, “the District's regulation … represents a
permissible legislative response to a serious, indeed life-threatening,
problem.”
Of course, virtually every author of every gun control law that has ever been passed or proposed has
claimed the measure is a matter of life and death. Never mind that few can show
any actual evidence their proposed restrictions will save lives. And even if
they could, Heller could not be clearer that this claim does not end the matter
when it comes to banning the sorts of arms commonly kept by law-abiding
citizens for lawful purposes. The majority very specifically rejected Breyer’s
attempts to use inapt analogies and “interest-balancing” to preserve D.C.’s
handgun ban.
Inapt analogies and interest-balancing, however, are
exactly the techniques employed by the Kolbe majority. They counterfactually
try to analogize AR-15s to M16s and other “weapons of war,” and then they
insist such firearms can be subject to a ban because they’re dangerous. It’s
likely that any ban of any type of firearm – and under any circumstances –
would survive this shallow and self-serving rationale.
If, as the Fourth Circuit suggests, a firearm loses
Second Amendment protection because it is specifically designed for “killing or
disabling the enemy,” then the whole idea of the Second Amendment protecting a
defensive purpose (or applying to any well-designed firearm, for that matter)
collapses. Handguns, rifles, and shotguns of any type can be equally
“dangerous.”
It’s bad enough that the Fourth Circuit considers the
choices actually made by law-abiding people irrelevant when it comes to the
Second Amendment, contrary to the clear admonition of Heller.
Yet the court’s reasoning is worse than that. It
challenges the very notion of freedom itself and the ability of a free people
to govern themselves and make their own choices from available alternatives. It
puts the people who vote and pay taxes and follow the law below the government
that is supposed to serve them and below the criminals who will use every
available means to prey upon them. It empowers the courts to decide, on a
case-by-case basis, what firearms are “safe” enough for a free people to be
trusted to own.
The NRA, on behalf of a free people, will continue to
vindicate the rights of all law-abiding Americans to keep and bear the best
firearms available to protect themselves and their loved ones. As we’ve
been there every step of the way in the Kolbe fight, we will continue to press
forward, including appealing the issue to the U.S. Supreme Court.
U.S. Court of Appeals for the Fourth Circuit
Michael F. Bennet
was a clerk for the U.S. Court of
Appeals for the 4th Circuit, and is married to Susan D. Daggett.
Note: Susan D. Daggett
is married to Michael F. Bennet, and
was an attorney for the Natural
Resources Defense Council.
Natural
Resources Defense Council is a member of the U.S. Climate Action Partnership.
Open
Society Foundations was a funder for the Natural Resources Defense Council, the Carnegie Endowment for International Peace (think tank), and the Center for American Progress.
George
Soros is the founder & chairman for the Open Society Foundations, a friend of Michael Douglas, was the chairman for the Foundation to Promote
Open Society, a benefactor for the Harlem
Children's Zone, and a supporter for the Center for American Progress.
Foundation
to Promote Open Society was a funder for the Natural Resources Defense Council, the Harlem Children's Zone, the Carnegie
Endowment for International Peace (think tank), the Aspen Institute (think tank), the Center for American Progress, and the Brookings Institution (think tank).
Michael R.
Bloomberg was a benefactor for the Harlem
Children's Zone, a contributor for the Americans
for Responsible Solutions, is the founder for the Independence USA PAC, a co-chair for the Mayors Against Illegal Guns, the founder of Everytown for Gun Safety, and the founder of the Bloomberg Family Foundation.
Americans
for Responsible Solutions is a “Gun
Safety, Gun Control” PAC for guns.
Mayors
Against Illegal Guns is a “Gun
Safety, Gun Control” group for guns.
Everytown
for Gun Safety is a
“Gun Safety, Gun Control” group for guns.
Warren E. Buffett
is an advisory board member for Everytown
for Gun Safety, and an adviser for the Nuclear
Threat Initiative (think tank).
Carnegie
Endowment for International Peace (think
tank) was a funder for the Nuclear
Threat Initiative (think tank).
Michael Douglas is
a director at the Nuclear Threat
Initiative (think tank), and a friend of George Soros.
Sam
Nunn is a co-chairman & CEO for the Nuclear Threat Initiative (think tank), and a director at the Bloomberg Family Foundation.
Hisashi Owada is a director at the Nuclear Threat Initiative (think tank),
and was a lifetime trustee at the Aspen
Institute (think tank).
Walter Isaacson
is a director at the Bloomberg Family
Foundation, and the president & CEO for the Aspen Institute (think tank).
Maya
Lin is a director at the Bloomberg
Family Foundation, and an honorary trustee at the Natural Resources Defense Council.
Bloomberg
Family Foundation was a funder for the Aspen
Institute (think tank).
Arjun
Gupta is a trustee at the Aspen
Institute (think tank), and a trustee at the Natural Resources Defense Council.
Natural
Resources Defense Council is a member of the U.S. Climate Action Partnership.
Susan D. Daggett
was an attorney for the Natural
Resources Defense Council, and is married to Michael F. Bennet.
Michael F. Bennet
is married to Susan D. Daggett, and was
a clerk for the U.S. Court of Appeals
for the 4th Circuit.
Susan
Crown was a trustee at the Natural
Resources Defense Council, is Lester
Crown’s daughter, and a member of the Commercial
Club of Chicago, the Chicago.
Lester Crown
is Susan Crown & James S. Crown’s father, a member of
the Commercial Club of Chicago, and was a lifetime trustee at the Aspen
Institute (think tank).
James S.
Crown is Lester Crown’s son, the
vice chairman for the Aspen Institute (think tank), and a member of the Commercial
Club of Chicago.
Bloomberg
Family Foundation was a funder for the Aspen
Institute (think tank).
R. Eden Martin is
the president of the Commercial Club of
Chicago, and counsel at Sidley
Austin LLP.
Michelle Obama
was a lawyer at Sidley Austin LLP.
Barack
Obama was an intern at Sidley Austin
LLP.
Newton N. Minow is
a senior counsel at Sidley Austin LLP,
and a member of the Commercial Club of
Chicago.
Rahm I. Emanuel
is a member of the Commercial Club of
Chicago, the Chicago (IL) mayor,
Ezekiel Emanuel’s brother, and was
the White House chief of staff for the Barack
Obama administration.
Ezekiel Emanuel
is Rahm I. Emanuel’s brother, a senior
fellow at the Center for American
Progress, was a health care policy adviser for the Barack Obama administration, and a faculty member at the Dana-Farber Cancer Institute.
Center
for American Progress calls for heightened Gun
Safety, Gun Control” for guns.
Stephen G. Breyer
is a trustee at the Dana-Farber Cancer
Institute, a justice for the U.S.
Supreme Court, and was a justice for the U.S. Court of Appeals for the 1st Circuit.
David Hackett
Souter was a justice for the U.S.
Supreme Court, a justice for the U.S.
Court of Appeals for the 1st Circuit, and Julius Genachowski was his clerk.
Julius
Genachowski was David Hackett Souter’s
clerk, is a senior fellow at the Aspen Institute (think tank), and
married to Rachel Goslins.
Bloomberg
Family Foundation was a funder for the Aspen
Institute (think tank).
Rachel Goslins
is married to Julius Genachowski,
and a director for the Arts and Industries Building for the Smithsonian Institution.
John G. Roberts
Jr. is the chancellor for the Smithsonian
Institution, the chief justice for the U.S.
Supreme Court, and an honorary member of the Robert Trent Jones Golf Club (Gainesville, VA).
Vernon E. Jordan
Jr. is the president emeritus for the Robert Trent Jones Golf Club (Gainesville, VA), an honorary trustee
at the Brookings Institution (think tank), Valerie B.
Jarrett’s great uncle, a senior counsel for Akin, Gump, Strauss, Hauer & Feld, LLP, a director at the
American Friends of Bilderberg (think tank), and a 2008 Bilderberg conference
participant (think tank).
Cyrus F.
Freidheim Jr. is an honorary trustee at the Brookings Institution (think tank), and a member of the Commercial Club of Chicago.
Commercial Club of Chicago, Members Directory A-Z (Past
Research)
Tuesday, December 17, 2013
Valerie B. Jarrett
is a member of the Commercial Club of
Chicago, the senior adviser for the Barack
Obama administration, and her great uncle is Vernon E. Jordan Jr.
Akin,
Gump, Strauss, Hauer & Feld, LLP was a funder for the Center for American Progress.
Center
for American Progress calls for heightened Gun Safety, Gun Control”
for guns.
Ezekiel Emanuel
is a senior fellow at the Center for
American Progress, Rahm I. Emanuel’s
brother, was a health care policy adviser for the Barack Obama administration, and a faculty member at the Dana-Farber Cancer Institute.
Center
for American Progress calls for heightened Gun Safety, Gun Control”
for guns.
Stephen G. Breyer
is a trustee at the Dana-Farber Cancer
Institute, a justice for the U.S.
Supreme Court, and was a justice for the U.S. Court of Appeals for the 1st Circuit.
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