Supreme Court Should Uphold Natural Rights over Fourth Circuit’s Gun-Control Clichés

I n the decade-plus since the Supreme Court decided D.C. v. Heller, in which the Court vindicated our Constitution’s protection of the individual right to keep and bear arms, many lower courts have tried desperately to avoid that decision’s clear meaning.

Perhaps the most extreme example of this avoidance is in the Fourth Circuit (the federal appellate court covering Maryland, North Carolina, South Carolina, Virginia, and West Virginia). There, our Founders’ and Framers’ respect for our natural rights gives way to gun-control ideology, demonizing so-called “assault weapons” and banning them as “weapons of war.”

In an affront to the people’s self-defense rights, the Fourth Circuit claims to apply the Supreme Court’s Heller decision — as it is required to do — but it in reality twists its meaning beyond recognition to uphold activist policies.

With the case of Bianchi v. Frosh, the Supreme Court has an opportunity to end this abuse. Three Maryland residents have sued the state’s attorney general, challenging the denial of all Marylanders’ Second Amendment–protected right to own the common and popular arms prohibited by the Old Line State. That prohibition has been upheld by the Fourth Circuit, based on its grave misreading of Heller.

Recently, the Center to Keep and Bear Arms joined with a group of like-minded Second Amendment specialists to file an amicus brief in support of Dominic Bianchi, David Snope, and Micah Schaefer, who have petitioned the Supreme Court to recognize their right to possess these unjustly banned weapons. The Court signaled its interest in taking up the case by “asking” Maryland to respond to Bianchi’s petition — a response that Maryland had previously declined to file.

Since 2013, Maryland has banned many common semiautomatic rifles, which it classifies as “assault weapons.” This is a nontechnical public-relations term, used to create confusion and fear around firearms that are constitutionally protected, currently legal in 44 states, and widely owned by peaceable Americans. Several of the features banned by Maryland actually make these rifles safer, as well as more useful, in emergency situations.

In 2017, the Fourth Circuit decided the case of Kolbe v. Hogan, in which plaintiffs challenged Maryland’s “assault weapons” ban on Second Amendment grounds. It was here that the Fourth Circuit established its twisting of Heller’s meaning, taking language from the Supreme Court out of context in order to uphold the state’s ban.

The Heller passage in question was essentially a sidebar discussion: explaining why, in the Court’s view, certain weapons (such as fully automatic M16 machine guns) could be restricted, despite their usefulness in war and the Second Amendment’s reference to military service.

The passage does not establish criteria for what sort of weapons, if any, can be restricted. And while it uses the phrase, with a different meaning, it certainly does not say that weapons can be banned simply because they are “most useful in military service.” But that is how the Fourth Circuit “interpreted” the Heller decision.

In reality, Heller states that the Constitution and amendments must be interpreted based on what they meant when they were ratified. And there is overwhelming evidence that our Revolutionary forefathers understood the historical predecessors to modern semiautomatic rifles to be protected under their newly ratified Second Amendment.

When it decided Kolbe v. Hogan in 2017, the Fourth Circuit simply bypassed this central holding of Heller, in favor of something the decision did not say at all: that any weapon deemed to be “like” a machine gun, and “most useful in military service,” could be banned.

This means if lawmakers think a weapon is more suitable for soldiers than civilians, and judges agree, that weapon receives no Second Amendment protection within the Fourth Circuit.

This doctrine has alarming implications, especially considering how many public officials see all firearms as “weapons of war” and believe they have no place in the hands of ordinary citizens. Even the “weapons of war” used by the colonists to fight back against British forces in the 1770s would have been banned under the Fourth Circuit’s test. Besides getting Heller completely wrong, the Fourth Circuit also embraced popular falsehoods about the weapons banned by Maryland.

In an echo of gun-control activists’ empty sloganeering, the circuit court in Kolbe described semiautomatic rifles as “exceptionally lethal weapons of war,” even though they are lawfully owned by millions of Americans and not regularly used by any military force.

The circuit also glossed over the critical difference between semiautomatic rifles and fully automatic rifles. Gun-control activists have been exploiting public confusion on this point for decades, but one would hope for a more accurate understanding from a federal appellate court.

Kolbe v. Hogan was appealed to the Supreme Court in 2017, but the Court ultimately chose not to hear the case.

In 2020, when Dominic Bianchi and his co-plaintiffs sued Maryland, their challenge immediately ran up against the obstacle of the Kolbe precedent. And there’s little chance of that deeply flawed decision being overturned without Supreme Court review.

But the Court is showing greater openness to Second Amendment concerns in its current term, and the people’s movement for our natural self-defense rights is not backing down.