Politics & Policy

A Federal Court of Appeals Goes to War against the Second Amendment

A court decides that criminals should outgun citizens.

What happens when you mix contempt for individual rights with a healthy dose of willful ignorance and fear? You get the Fourth Circuit Court of Appeals, the court that’s teaching the legal Left the recipe for attacking the Second Amendment.




Twice in less than a month, the court has radically restricted the constitutional rights of gun owners. In January, it held that even lawful gun owners are inherently “dangerous” and can face limitations on their constitutional rights, including the right to be free of unreasonable search and seizure, simply because they possess a gun. In the words of a concurring judge:

In sum, individuals who carry firearms — lawfully or unlawfully — pose a risk of danger to themselves, law enforcement officers, and the public at large. Accordingly, law enforcement officers may frisk lawfully stopped individuals whom the officers reasonably suspect are carrying a firearm because a detainee’s possession of a firearm poses a categorical “danger” to the officers.

But this holding, as dangerous as it is, pales in comparison with the court’s decision yesterday, when it not only upheld Maryland’s assault-weapons ban but categorically stated that the Second Amendment does not protect the right to own so-called assault weapons or the right to own a magazine that holds more than ten rounds of ammunition.

How can it reach such a conclusion? Remember the formula: contempt, willful ignorance, and fear.

First, let’s look at the court’s breathtaking contempt for individual rights. Rather than read the Supreme Court’s controlling opinion in District of Columbia v. Heller according to its plain language, it deliberately distorts Justice Antonin Scalia’s majority opinion. In Heller, Scalia clearly stated that the sorts of weapons the Second Amendment protects are those that are “in common use at the time,” with exceptions that apply to those weapons that are “dangerous and unusual.”

Why the addition of “and” unusual? Because every single working gun ever made is dangerous. To illustrate his point, Scalia then provides examples of specific types of “dangerous and unusual” guns — “M-16 rifles and the like.” Here’s a news flash: The M-16 isn’t the same as a civilian “assault weapon” like the AR-15. The M-16 variants in use in the United States military are capable of being fired in both semi-automatic and fully automatic (three-round burst) modes. If you think that the M-16 and AR-15 are alike, then walk to your local gun store and try to buy an M-16.

Go ahead. I’ll wait.

Are you back yet? Do you have an M-16? No? That’s because it’s an entirely different category of weapon, governed by different federal statutes. The Fourth Circuit, however, deliberately conflated semi-automatic weapons and automatic weapons. And it went to absurd lengths to do so. To illustrate how, let’s turn to the next part of the formula — willful ignorance.

RELATED: The Fourth Circuit Runs Roughshod over Heller and the Second Amendment

In discussing the civilian, semi-automatic AR-15, the court comprehensively described the history of the military, fully automatic weapon that became the M-16 (and also the lighter and shorter M-4). Then, attempting to equate the M-16 and the AR-15, it published this spit-out-your-coffee sentence: “Semiautomatic weapons can be fired at rates of 300 to 500 rounds per minute, making them virtually indistinguishable in practical effect from machineguns.”

The word “rates” does a lot of work in that sentence. Yes, a person can pull the trigger very quickly on a semi-auto rifle (of any type) for a very short time. No, you cannot send 300 to 500 rounds downrange in one minute. You can’t even do it with an M-16 in burst mode.

To the Fourth Circuit, every shooter’s the same as the legendary Jerry Miculek:

The majority also argues that the AR-15 is “like” the M-16 because soldiers typically fire their weapons in semi-automatic mode. True enough. They also use exclusively semi-auto pistols, sometimes use bolt-action sniper rifles, and brought pump-action shotguns to combat for generations. By that reasoning, virtually every firearm is “like” a military weapon.

What really is the limiting principle? That’s where we get to the final ingredient in the unconstitutional stew — fear.

The court begins its opinion by reciting the horrible facts of the Sandy Hook massacre. It then walks through shooting after shooting in which the killers used “assault weapons,” high-capacity magazines, or both. These anecdotes are horrible, but the plural of anecdote is not “data,” and the data show that fewer people are murdered by rifles than by fists or feet and that a previous nationwide assault-weapons ban led to “no discernible reduction in the lethality and injuriousness of gun violence.” Indeed, even if the ban had been renewed, its “effects on gun violence [were] likely to be small at best and perhaps too small for reliable measurement.”

Even more perniciously, the court hypes the fear of mass shootings at the same time that it takes from civilians the best weapon for confronting a mass shooter — a semi-automatic handgun carrying a high-capacity magazine. Even though law-abiding holders of concealed-carry permits commit less crime than the police (more data for the court) and have stopped mass shootings time and again, the Fourth Circuit mandates that they be outgunned in the face of the common threat of a large-capacity magazine.

Let’s put this as plainly as possible. This court has determined that your right to self-defense is limited to the use of weapons less effective than those used in the most notorious massacres. In other words, criminals define your rights. Whatever gun they choose to use in the rarest of crimes, you’re going to have to settle for less, even if the criminal retains broad and easy access to superior firepower. After all, the Fourth Circuit, in its infinite gun wisdom, has determined that no one has “needed to fire more than ten rounds” to protect himself.

Here’s the bottom line, citizens of Maryland: A federal court has defied the Supreme Court and decided that the constitutional right to keep and bear arms is limited to those guns that have no modern military analog and have not (yet) been used to carry out a mass shooting. So dust off those pearl-handled revolvers. Learn to shoot like Doc Holliday. Criminals won’t comply with Maryland’s brainless law, so your aim had better beat their firepower.

In two key cases, deception, fear, and ignorance have overcome the Constitution. This is how Heller dies — one defiant decision at a time.

David French — David French is a senior writer for National Review, a senior fellow at the National Review Institute, and a veteran of Operation Iraqi Freedom.

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