2aguy
Diamond Member
- Jul 19, 2014
- 111,956
- 52,217
- 2,290
IN this article National Review writer Charles Cooke takes apart the unConstitutional ruling of the 4th Circuit Court of Appeals on Assault rifles and standard magazines....
The Fourth Circuit Runs Roughshod over Heller and the Second Amendment
As Judge Traxler’s dissent pointedly establishes, the majority achieved this transformation by contriving “a heretofore unknown ‘test,’ which is whether the firearm in question is ‘most useful in military service.’” In effect, this “test” is designed to permit judges to determine that any weapon they might dislike is unprotected by the Second Amendment and can therefore be prohibited with impunity. Forget that Heller contains its own explicit tests. Forget the “common use” standard. Forget “dangerous and unusual.” There’s a new kid in town, and he’s coming for your rifles.
What counts as “most useful in military service” under this rubric? Well . . . everything, theoretically. “Under the majority’s analysis,” the dissenters contend, “a settler’s musket, the only weapon he would likely own and bring to militia service, would be most useful in military service — undoubtedly a weapon of war — and therefore not protected by the Second Amendment.” Indeed, “the ‘most useful in military service’ rubric would remove nearly all firearms from Second Amendment protection as nearly all firearms can be useful in military service.” A standard semi-automatic handgun is plausibly “most useful in military service.” So, too, is a hunting rifle. So is a sword. Perhaps the Fourth Circuit would like to strip the constitutional protection from those weapons, too?
That, of course would be absurd — not only because it would render the Second Amendment meaningless as a check on state action, but because the Supreme Court has already delivered clear instructions to the contrary.
In Caetano v. Massachusetts, which, recall, was decided per curiam, Justice Alito explained in no uncertain terms that “even a stun gun capable of only non-lethal force is suitable for military use,” but that this did not mean that stun guns could be banned.
Alito sits on the Supreme Court, and was writing in concurrence with the other eight justices. Perhaps the Fourth Circuit has forgotten where it sits in the pecking order.
Or perhaps the Fourth’s majority is unfamiliar with Caetano. Certainly, its grasp of Heller is wanting.
In pushing back against the majority’s newfangled test, the dissenters correctly note that “Heller in no way suggests that the military usefulness of a weapon disqualifies it from Second Amendment protection.
That is the majority’s singular concoction.” Indeed it is. As for Heller’s “common use” and “dangerous and unusual” standards, both of those are thrown casually out the window.
The evidence, notes Judge Traxler, leads one to the “unavoidable conclusion that popular semiautomatic rifles such as the AR-15 are commonly possessed by American citizens for lawful purposes within the meaning of Heller.”
Moreover, the record “shows unequivocally that magazines with a capacity of greater than 10 rounds are commonly kept by American citizens, as there are more than 75 million such magazines owned by them in the United States.”
But the majority doesn’t care about that, choosing to apply only the “military” standard that it has invented. Evidently, it does not matter to Judge King that the standard in Heller is “dangerous and unusual” [italics mine] — i.e. that commonly owned, “usual” weapons cannot be prohibited on the grounds that they are particularly lethal.
Nor, apparently, is King concerned that the Court ruled in Caetano that “the relative dangerousness of a weapon is irrelevant when the weapon belongs to a class of arms commonly used for lawful purposes.” He and his colleagues had a conclusion to reach, and by gum were they going to get there.
Read more at: The Fourth Circuit Runs Roughshod over Heller and the Second Amendment
Read more at: The Fourth Circuit Runs Roughshod over Heller and the Second Amendment
The Fourth Circuit Runs Roughshod over Heller and the Second Amendment
As Judge Traxler’s dissent pointedly establishes, the majority achieved this transformation by contriving “a heretofore unknown ‘test,’ which is whether the firearm in question is ‘most useful in military service.’” In effect, this “test” is designed to permit judges to determine that any weapon they might dislike is unprotected by the Second Amendment and can therefore be prohibited with impunity. Forget that Heller contains its own explicit tests. Forget the “common use” standard. Forget “dangerous and unusual.” There’s a new kid in town, and he’s coming for your rifles.
What counts as “most useful in military service” under this rubric? Well . . . everything, theoretically. “Under the majority’s analysis,” the dissenters contend, “a settler’s musket, the only weapon he would likely own and bring to militia service, would be most useful in military service — undoubtedly a weapon of war — and therefore not protected by the Second Amendment.” Indeed, “the ‘most useful in military service’ rubric would remove nearly all firearms from Second Amendment protection as nearly all firearms can be useful in military service.” A standard semi-automatic handgun is plausibly “most useful in military service.” So, too, is a hunting rifle. So is a sword. Perhaps the Fourth Circuit would like to strip the constitutional protection from those weapons, too?
That, of course would be absurd — not only because it would render the Second Amendment meaningless as a check on state action, but because the Supreme Court has already delivered clear instructions to the contrary.
In Caetano v. Massachusetts, which, recall, was decided per curiam, Justice Alito explained in no uncertain terms that “even a stun gun capable of only non-lethal force is suitable for military use,” but that this did not mean that stun guns could be banned.
Alito sits on the Supreme Court, and was writing in concurrence with the other eight justices. Perhaps the Fourth Circuit has forgotten where it sits in the pecking order.
Or perhaps the Fourth’s majority is unfamiliar with Caetano. Certainly, its grasp of Heller is wanting.
In pushing back against the majority’s newfangled test, the dissenters correctly note that “Heller in no way suggests that the military usefulness of a weapon disqualifies it from Second Amendment protection.
That is the majority’s singular concoction.” Indeed it is. As for Heller’s “common use” and “dangerous and unusual” standards, both of those are thrown casually out the window.
The evidence, notes Judge Traxler, leads one to the “unavoidable conclusion that popular semiautomatic rifles such as the AR-15 are commonly possessed by American citizens for lawful purposes within the meaning of Heller.”
Moreover, the record “shows unequivocally that magazines with a capacity of greater than 10 rounds are commonly kept by American citizens, as there are more than 75 million such magazines owned by them in the United States.”
But the majority doesn’t care about that, choosing to apply only the “military” standard that it has invented. Evidently, it does not matter to Judge King that the standard in Heller is “dangerous and unusual” [italics mine] — i.e. that commonly owned, “usual” weapons cannot be prohibited on the grounds that they are particularly lethal.
Nor, apparently, is King concerned that the Court ruled in Caetano that “the relative dangerousness of a weapon is irrelevant when the weapon belongs to a class of arms commonly used for lawful purposes.” He and his colleagues had a conclusion to reach, and by gum were they going to get there.
Read more at: The Fourth Circuit Runs Roughshod over Heller and the Second Amendment
Read more at: The Fourth Circuit Runs Roughshod over Heller and the Second Amendment
