Thursday, February 23, 2017

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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Anonymous said...

The fourth circuit has no jurisdiction to rule in this case. The supreme court has already ruled that everything is covered by the second amendment, even weapons that did not exist when the second amendment was ratified. again this is a case of some lower level of government passing laws that attempt to change the second amendment. the supreme courts ruling is above the fourth circuit. and again the supreme court has jurisdiction between any state or other lower level of government, challenging the constitution or federal law, How long will it take to get competent representation from some lawyer to challenge these lower court rulings? the states have no authority to define weapon. states have no authority to amend the second amendment. the US congress has no authority to pass a law or an act that modifies the second amendment. I have studied a lot of law so why is it that bar certified attorneys are not challenging these rulings on jurisdictional issues?

Dean Weingarten said...

The case occurred in Maryland. Maryland is in the jurisdiction of the Fourth Circuit.

It isn't the lawyers that are the problem. It is the judges that hate the idea of the Second Amendment.

Marshall said...


How can they square this decision with Miller? In Miller, SBS were declared to be subject to the NFA because they were "NOT" in common use by the Military. Here, the 4th Circuit says the MSR can be restricted because the "ARE" similar enough to the common military M16 to be considered a military weapon. The Judges that made this ruling need to be impeached and removed from office due to severe intellectual confusion or dishonesty.


Anonymous said...

Wrong! read the constitution. When it is an issue of constitutional rights. it is a supreme court case not a district court case. Just because this sort of thing has been going on for decades does not make it constitutional. lawyers make their living running this government to please them and judges are even worse.

Anonymous said...

There is nothing in the constitution that requires a judge to have a law degree, but try getting to be a judge without a law degree. the entire concept of our legal system has been polluted by common practice that really is unconstitutional. Lapse of time does not change laws or the constitution. we are not ruled by political opinion we are ruled by what is actually written. If we did not have approximately 63 million laws acts and regulations on the books our legal system just might work better. it is estimated that over 90% of those laws are in fact unconstitutional for some reason.

Bob Sutterfield said...

An AR-15 is not "like" a M-16 in any way affecting its function. There is a high degree of component commonality, as a result of engineering for modern industrial manufacturing processes. But the critical components differentiating their function - the lower receiver (the part defined as a firearm and regulated by the ATF) and the sear (the part required to be registered under the NFA) - are different. Possession of a M-16-specific component without the suitable paperwork is a serious Federal offense.

The only way in which an AR-15 is "like" a M-16 is cosmetic, due to the common components affecting their modular adaptability, ergonomics, and safety. That is how the political term "assault weapon" came to be invented, to exploit that appearance for the purpose of instilling popular confusion between the two. This 4th circuit decision explicitly endorses that conflation.

Anonymous said...

The problem with that ruling is that it is a circuit court ruling that conflicts with the supreme court ruling so you decide which court has the authority to make the ruling that does not permit the definition of the word weapon to be defined. the supreme court ruled that all weapons not in existence at the time the second amendment was ratified were covered by the second amendment. that differentiation by the ATF is a constitutional violation of authority it has never had. go a head show me their legal authority to make law or define weapon. Oh, maybe the ATF is not subordinate to US supreme court rulings that their regulations violate. who would make that determination of the ATF did not exist? go talk to your self and think it over.

Anonymous said...

I think you miss the point Dean. Maryland is in the fourth district. Arizona is in the ninth district fine but neither of those districts have jurisdiction to hear this kind of a case. cases between the states and the federal government are for the original jurisdiction of the supreme court the only place to file this case is the supreme court.

When you get a conviction for jay walking. you file an appeal in state court when you file in the appeals court and loose you file in the state supreme court and if you still do not get the conviction over turned then you file in federal district court and if you fail to get the conviction over turned in federal district court you file in the US court of appeals if you still do not get the conviction over turned you file in the US supreme court because the Supreme court has nullified all jay walking laws nation wide. Jay walking is not a civil rights issue. It is an unconstitutional local ordinance by supreme court ruling. any jay walking laws still on the books are null and void. Civil rights violations are original jurisdiction of the US supreme court. the constitution guarantees you your day in court before the proper forum. the supreme court can not refuse to hear a case involving a civil rights issue but they do and attorneys let them get away with it. then they cash your retainer check.

When I filed for total custody of my eleven year old daughter the court of original decree tried to avoid hearing the case. then I proved the court of original decree had all seven forms of jurisdiction possible and I won my custody suit. California really hates to give custody to a father. I also won custody of another daughter in Arizona.

Anonymous said...

I had an early model M1- 30 caliber carbine. It was identical to the military model. I currently have a new model M1- 30 caliber carbine it has been completely redesigned for the internal function. there are early model M16s that came out with the two position selector switch, safe and semi. those early model versions only need the three position selector switch to make them work full auto. the out side markings have nothing to do with what is on the inside. three position selector switches that came back from Vietnam were selling for over 150 dollars.

Anonymous said...

Dean you pointed out why the judges need to be removed when they make rulings like this. they hate the second amendment. That is personal bias and is forbidden to remain on the bench. Judges are required to either recuse themselves or resign if they can not or will not enforce the written laws. If someone will take this judge to task he could be forced to resign or be impeached. we have legal tools to use we just have to know they exist and how to use them.

I believe it was in Washington state a Hispanic judge helped an ICE suspect escape from the court house. the US attorney is moving to get her disbarred and removed.