Tuesday, February 21, 2017

The 4th Circuit Has Gone To Hell In A Handbasket!

The 4th Circuit Court of Appeals in its infinite wisdom has decided that the most common rifle in America in not entitled to the protection of the Second Amendment. Thank you President Obama for stacking this Court of Appeals with nitwits and halfwits given that seven of the 15 active judges (non-senior status) were his appointments.

The 4th Circuit issued an en banc decision in Kolbe et al v. Hogan et al which upheld the Maryland law that banned so-called assault weapons (sic) and standard capacity magazines. The case was decided in a 9-4 split with the majority opinion written by Judge Robert B. King, a Clinton appointee, and a native of West Virginia.

Using intermediate scrutiny, Judge King wrote:
Because the banned assault weapons and large-capacity magazines are clearly most useful in military service, we are compelled by Heller to recognize that those weapons and magazines are not constitutionally protected. On that basis, we affirm the district court’s award of summary judgment in favor of the State with respect to the plaintiffs’ Second Amendment claims.
Earlier he wrote:
Thankfully, however, we need not answer all those difficult questions today, because Heller also presents us with a dispositive and relatively easy inquiry: Are the banned assault weapons and large-capacity magazines “like” “M-16 rifles,” i.e., “weapons that are most useful in military service,” and thus outside the ambit of the Second Amendment? See 554 U.S. at 627. The answer to that dispositive and relatively easy inquiry is plainly in the affirmative.

Simply put, AR-15-type rifles are “like” M16 rifles under any standard definition of that term. See, e.g., Webster’s New International Dictionary 1431 (2d ed. 1948) (defining “like” as “[h]aving the same, or nearly the same, appearance, qualities, or characteristics; similar”); The New Oxford American Dictionary 982 (2d ed. 2005) (defining “like” as “having the same characteristics or qualities as; similar to”). Although an M16 rifle is capable of fully automatic fire and the AR-15 is limited to semiautomatic fire, their rates of fire (two seconds and as little as five seconds, respectively, to empty a thirtyround magazine) are nearly identical. Moreover, in many situations, the semiautomatic fire of an AR-15 is more accurate and lethal than the automatic fire of an M16. Otherwise, the AR-15 shares the military features — the very qualities and characteristics — that make the M16 a devastating and lethal weapon of war.
To quote the philosopher Forrest Gump, "I may not be a smart man" but that is utter bullshit! The opinion, concurrences, and dissents go on for 116 pages. I just can't bring myself to read the whole thing tonight I'm so pissed off.

 The Wall Street Journal opines that this case will go to the Supreme Court. If so, it is time to get Judge Gorsuch on the court as Associate Justice Gorsuch. Moreover, it is time to start using the nomination process to appoint judges who are originalists and not some flim-flam men and women who misinterpret the plain words of Justice Scalia in the Heller decision.


  1. The 4th circus was a “collective rights” circus, and remains so to this day, Heller / McDonald be damned. That’s one reason why it is a bad idea for us to challenge laws within these circuits because of the potential for seriously bad rulings we’ll be stuck with for generations.

  2. So, I can't have a short barreled shotgun, because it has limited military purpose, but I can't have high capacity magazines because they have lots of military purpose. So, which is it?

  3. Patrick Henry, the 2ndFebruary 22, 2017 at 12:21 PM

    Garbage decision.

    The dissent had a great line (paraphrasing here): The majority ruling allows M1 Garands, an actual military rifle which was used in WWII. So the "military like firearms" doctrine bans rifles the military doesn't use but allows rifles the military actually used.

  4. Even before Scalia died, it was clear that there were not 5 votes to slap down the circuit courts for defying the Supremes. Someone, probably Roberts, has defected from the Heller 5. So even if Gorsuch is another Scalia, it will not fix the problem. It will take another or perhaps two appointments. Unless there is a re-defection.

    1. It's also possible Kennedy got cold feet too.

  5. Well, I think it is notable that at least in this case, they actually abandon the collective right argument against individual gun ownership. After all, if the 2A only protected the collective right of government-sanctioned militias to have guns, it wouldn't be reasonable to deny "military style" guns to the military.

    Instead, they move to deny an individual the right to own a "military style" weapon. Seems to me that this actually validates the individual right assertion found in Heller. I guess now they're going to have to deal with that pesky "in common use" clause...

  6. at this point in this nations slide into oblivion what the hell are laws any way , come and take them and see where your pontificating gets you .( f#$% lawyers and judges , hang them all )