From Wikipedia. Photograph of “The Minute Man,” a statue by Daniel Chester French erected in 1875 in Concord, Massachusetts.
THE ARBITRARY EXERCISE OF JUDICIAL POWER: THE FOURTH CIRCUIT COURT OF APPEALS DESTROYS THE SECOND AMENDMENT ON A TUESDAY.
OVERVIEW & INTRODUCTION
On Tuesday, August 6th, the Fourth Circuit Court of Appeals was compelled, in light of the decision in New York State Rifle and Pistol Ass’n v. Bruen, 597 U.S. 1 (2022), to revisit its prior reasoning in Kolbe v. Hogan, 849 F3d 114 (4th Cir. 2017), that Maryland’s “Assault Weapons” ban was constitutional. The United States Supreme Court had in Bruen established a strict scrutiny test for a regulation burdening the right to keep and carry arms, and it was assumed that Bianchi v. Brown, a case that the Supreme Court granted a writ on, vacated the judgment upon, and sent back for review in light of the clear mandate of Bruen, would be decided consistent with the Second Amendment’s unqualified command. Wrong. Undeterred, the Fourth Circuit gave us an example of how politics and headlines can destroy a judge’s oath to follow the Constitution and, as a result, break the fiduciary bond a court has with the public to follow the law and not impose its political will. In the case I am about to discuss, the Fourth Circuit did just that and failed in its task by selectively avoiding the commands of Heller and Bruen, cherry-picking facts, splitting tests, and ultimately again rendering the Second Amendment a second-class right because a statistically small number of criminals and terrorists have wielded for criminal purposes a rifle lawfully used by millions for self-defense, sport, and competition. How dangerous is this? The Fourth Circuit hears appeals from and covers the states of Maryland, Virginia, West Virginia, North Carolina, and South Carolina. Not very many AR-15s in those places, right? The wrong Virginia General Assembly will take its cue and pass a similar ban unless the Supreme Court fully and finally defines which classes of weapons are protected and which are not. Neither the Heller nor the Bruen court told us clearly, leaving a huge opening for a court with a political agenda to do what happened this week. It is time. In the meantime, does this reasoning from this week’s decision read like sound judicial foundation for a constitutional inquiry?
“The assault weapons at issue fall outside the ambit of protection offered by the Second Amendment because, in essence, they are military-style weapons designed for sustained combat operations that are ill-suited and disproportionate to the need for self-defense. Moreover, the Maryland law fits comfortably within our nation’s tradition of firearms regulation. It is but another example of a state regulating excessively dangerous weapons once their incompatibility with a lawful and safe society becomes apparent, while nonetheless preserving avenues for armed self-defense.”
Bianchi v. Brown (August 6, 2024), Judge Wilkinson, at page 3.
IN OTHER WORDS, BORROW BIDEN’S SHOTGUN OR USE STRONG LANGUAGE.
Starting with this premise, the court engaged in a selective and circuitous search to come to this result, and in so doing, it set the stage for the Supreme Court to fully and finally define that class of weapons that are in common use for lawful purposes—a category it has unfortunately left vague since Heller first defined the individual right to keep and bear arms—and still, after Bruen cemented its hierarchy as a first-class right entitled to an analysis as strict as undertaken in any First Amendment case. The Fourth Circuit erred, and a nearly 80-page dissent by five of its en banc judges said so forcefully in the following ways:
- The majority decided the case untethered from the history and tradition of the Second Amendment and only looked at the foundation of the right as protecting the natural right of “individual self-defense” when it is clear that the right is more expansive and includes a collective right to join issue with tyranny in its many forms.
- The Founders noted that what set the experiment of our new Republic apart from the European model was that we were armed, and since the people gave government its power, an abuse of that power could lead to both a change and a defense against a corrupt tyrannical government. This clear underpinning of the right was completely ignored to get to the court’s politically fueled result.
- There are tens of millions of AR-15 type weapons utilized lawfully and humbly by Americans in harmony with the history and tradition of gun ownership in this country, balanced against a small but tragic statistic of such rifles used in the pursuit of anti-social and evil objectives.
- Semi-automatic handguns have been used in similar crimes, but this was ignored to get the desired result. Both the Virginia Tech and Virginia Beach miscreants used handguns. These are commonly used and owned for lawful purposes.
- In short, the majority noted that with the AR-15, the rounds traveled too fast and too far out of a magazine with a lot of them, so it was simply too “dangerous” and far more than what is necessary for self-defense. Yes, folks, the weapon is simply “too dangerous. A rifle “too dangerous.” You can’t make it up, but they did.
- The majority either forgot or intentionally carved out “unusual” from “dangerous” because to recognize the common and popular AR-15 as America’s most owned civilian rifle would have destroyed their mission to uphold the ban.
- Many lawfully owned weapons have their genesis in military use and design. This does not make them objectively dangerous when utilized for purposes consistent with the Second Amendment’s design.
Circuit Judge Richardson, joined by four other Circuit Judges, penned a dissent as detailed as the majority opinion and set the stage for the inevitable grant of a writ of certiorari by the Supreme Court, where the majority’s outcome determinative reasoning will most probably not be given a warm reception. The dissenters noted:
“…Rather than considering the Amendment’s plain text, the majority sidesteps it altogether and concocts a threshold inquiry divorced from the right’s historic scope. To make matters worse, it then misconstrues the nature of the banned weapons to demean their lawful functions and exaggerate their unlawful uses. Finally, to top it all off, the majority cherry picks various regulations from the historical record and pigeonholes them into its preferred, yet implausible, reading of our Nation’s historical tradition of firearms regulation.”
The dissenters noted the clearly expansive and historical foundation for the Second Amendment over and above “individual self-defense,” a task for which the majority considered the AR-15 much overqualified and therefore “too dangerous,” Circuit Judge Richardson continued:
“Defense of one’s community was not limited to protecting against criminals or hostile foreign forces….social contract theory hypothesized that individuals voluntarily entered political society to protect their rights, including their right to self defense, from violation by others. The body politic then delegated political authority for its protection to the government via a constitution. But the people remained constantly wary that the government would abuse its political authority and invade their rights…. So the people reserved a degree of military power to themselves and exercised it through institutions like the militia…”
Whether one wields the musket of the Founding era or the AR-15 of today, the goals are just as sound. Both the individual and collective rights of self-defense against all forms of tyranny are even more important and compelling today in an age of domestic terror and gang crime where adversaries will be armed with these rifles but with tyrannical purposes. In Maryland, they will have their way. To disarm the law-abiding and humble American of good will is the true abuse of power, and it is up to our Supreme Court to uphold and defend the Constitution against the ravages of political expediency and restore confidence in a judiciary that upholds its well-settled obligation to interpret the text and tradition of the law untethered to a political agenda.
Mike Imprevento
August 2024
