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Ar-15s not included in second amendment.

(PHOENIX, AZ, April X) By now you've probably heard about the Federal Court of Appeals for the 4th Circuit's horrible anti-rights decision declaring that so-called "assault weapons" and "high-capacity" magazines are not protected by the Second Amendment. But have you heard how they reached this ridiculous conclusion?

The case, Kolbe v. Hogan, was a challenge to Maryland's oppressive restrictions on semi-auto rifles and magazines with a capacity of more than 10 rounds.

The challengers lost the first round, when a judge used "intermediate scrutiny" to rule that the law served a valid government interest and was not enough of a burden on the right to arms to be considered unconstitutional. The case then went to a three-judge panel of the 4th Circuit, which reversed the District Court decision, declaring that "strict scrutiny" should have been applied, meaning that the government must prove that the state's interest in the law is "compelling," and that the law is tailored to be as narrow as possible to effectively achieve the state's compelling objective.

Unfortunately, that good decision was set aside when a majority of the judges of the 4th Circuit decided they wanted to hear the case en banc, meaning a hearing with all of the court's judges participating.

The en banc hearing was held in May of 2016, but a ruling didn't come down until February of 2017--more than 280 days later. Not only did the majority reject the "strict scrutiny" ruling of their own three-judge panel, they declared that the Second Amendment didn't apply at all.

In an amazing display of judicial gymnastics, the majority twisted a short comment from Justice Scalia's decision in the landmark Heller case, into a declaration that military-looking semi-autos in general, and AR-15 style rifles in particular, are not protected as "arms" under the Second Amendment. Justice Scalia must be spinning in his grave.

In his Second Amendment analysis in Heller, Justice Scalia commented:

"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.' We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of 'dangerous and unusual weapons.' 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." (citations omitted)

Now look at how the 4th Circuit abused part of that paragraph:

"We conclude ... that the banned assault weapons and large-capacity magazines are not protected by the second amendment. That is, we are convinced that [they] 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." (citations omitted, emphasis in original)

Wait ... What? That's not what Scalia said. He raised a sideways reference to "if' "M-16 rifles and the like" can be banned. He was hedging against any claim that the Heller decision, by itself, would invalidate the National Firearms Act. He most certainly did not proclaim semi-autos that look like M-16s and other military weapons to be beyond the scope of the Second Amendment. He was, in fact, making a point that weapons that are commonly owned by "the people" are what the Second Amendment most clearly does cover. AR15-pattern rifles are the most popular, and one of the most commonly owned rifles in the country.

This case is being appealed to the Supreme Court, where it would be very surprising if even the most rabid anti-Second Amendment justices didn't slap down the 4th for their arrogance and distortion. Even the "liberal" wing of the Court takes umbrage to lower courts intentionally misrepresenting and abusing SCOTUS decisions.

The judges of the 4th Circuit might have done well to review the Supreme Court's smack-down of the Massachusetts Supreme Judicial Court in Caetano v. Massachusetts. The opening paragraph of that unanimous decision from SCOTUS reads:

"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, and that this 'Second Amendment right is fully applicable to the States,' McDonald v. Chicago." (citations omitted)

While the four "liberal" justices would almost certainly opt for intermediate scrutiny, and allow Maryland's bans to stand, Roberts and Kennedy could go either way, so hopefully Gorsuch will tip the scales in favor of the Second Amendment.

When President Trump talks about "draining the swamp," the judiciary certainly qualifies as a shovel-ready project. That job will take longer and be more difficult than cleaning up the federal bureaucracy, but it's a job that needs to be done.

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Title Annotation:THE KNOX UPDATE: From The Fireams Coalition
Author:Knox, Jeff
Publication:Firearms News
Date:Jul 1, 2017
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