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Defying the Supreme Court in Kolbe v. Hogan

The term “assault weapon” was coined in 1988. At that time, with the public and media having lost interest in banning handguns, a gun-control strategist sought to invent a “new topic in . . . an ‘old’ debate.” He announced:

Assault weapons—just like armor-piercing bullets, machine guns, and plastic firearms—are a new topic. The weapons’ menacing looks, coupled with the public’s confusion over fully automatic machine guns versus semi-automatic assault weapons—anything that looks like a machine gun is assumed to be a machine gun—can only increase the chance of public support for restrictions on these weapons. [Emphasis in original] [1]

Exploiting “the public’s confusion” worked. Firearms are classified as “assault weapons” based on their having external attachments like vertical pistol grips (which provide stability and accuracy) and barrel shrouds (which prevent burns) that do not change how the guns operate. The first ban enacted in California outlawed guns based on appearance. The result was a ban on some single-shot and nonexistent guns (because of typographical and other errors in the sources used by legislative aides).

The corollary to accepting the legitimacy of such bans is that there is no coherent limit on what firearms may be banned, despite the U.S. Supreme Court’s having held in District of Columbia v. Heller and McDonald v. City of Chicago that the Second Amendment protects bearable arms commonly possessed by civilians for lawful purposes. Since the AR-15 rifle, which is covered by every or almost every “assault-weapons” ban, became available for sale to the public over half a century ago in 1963, tens of millions of those and other covered weapons have been owned by tens of millions of perfectly peaceable citizens. Yet the weapons and their owners are routinely demonized—statements like “There is no legitimate use for these weapons” and “The only people who use them are mass murderers” are typical—with the aim of making it easier to target them with harsh and unjustified legislation.

The en banc U.S. Court of Appeals for the Fourth Circuit was happy to buy into this misinformation-turned-demonization campaign when it upheld Maryland’s “assault-weapons” ban against a Second Amendment challenge in Kolbe v. Hogan, 849 F.3d 114 (4th Cir. 2017). The Supreme Court acquiesced when it declined to grant certiorari. The Fourth Circuit upheld a ban on possession by members of the general public, repeatedly referring to the banned firearms as “weapons of war.” The majority based its characterization on the AR-15 rifles being “‘like’ ‘M-16 rifles.’” The latter rifle, of course, is the military’s fully automatic battle rifle, which Heller indicated could be constitutionally banned. The majority also upheld, against an equal protection challenge, an exception to the ban for retiring law-enforcement officers who are given their duty “assault weapons” by their departments upon leaving the job.

As a threshold matter, the Supreme Court squarely rejected, in Staples v. United States, 511 U.S. 600 (1994), the notion that AR-15s are weapons of war like M-16s. In that decision, the Court  held that the mere possession of an AR-15 was an entirely “innocent act” consistent with the “long tradition of widespread lawful gun ownership by private individuals in this country,” notwithstanding the rifle’s being the semi-automatic civilian version of the M-16. It held that the owner of an AR-15 could not be held strictly liable for possessing the weapon, which sometimes fired automatically because of a defect, as he could have been for possession of true weapons of war like M-16s (which have visible selector switches clearly indicating that they can be fired fully automatically) or hand grenades.

Heller went further, holding that a weapon’s military utility is irrelevant to the question of whether citizens commonly possess it for lawful purposes, and therefore whether it receives Second Amendment protection. And Heller, in using “like” to refer to M-16s, does so in a context where it accepted that machine guns did not receive Second Amendment protection because they were “highly unusual in society at large”—that is, not commonly possessed for lawful purposes. Semi-automatic AR-15s, then, are not like M-16s under Heller because they are not unusual but very common in American society.

More poignant than the Fourth Circuit’s failed legal gymnastics, however, is its philosopher king–style elitism—the same attitude evinced by much of modern gun control. The Maryland State Police[2] and the U.S. Marshals who protect federal judges use AR-15s as their duty rifles. If these rifles were truly “weapons of war,” they would only be good for waging war against the citizenry and should not be used by law enforcement—at least not on a regular basis. This is doubly true of retired officers, who are members of the “mere” (quotes mine) citizenry.

The Kolbe majority knows very well, as do “all superior beings who have taken upon themselves the terrible burden of civilizing the masses,” in the words of the attorney and writer Jeffrey R. Snyder, that “laws are for other people.” In upholding the exception for law enforcement, the Kolbe court implicitly held that judges’ and retired officers’ lives are worth protecting with the best available tools (they are), but that the rest of the gun-owning rabble is not. Not so. All lives matter.

Little wonder that the members of the National Sheriffs Association, who are elected officials with close daily contact with their citizens (unlike federal judges or philosopher kings), asked the Supreme Court to reverse the Fourth Circuit’s decision in an amicus brief. They use these weapons to protect their citizens, not wage war on them, and vehemently objected to Kolbe’s implicit characterization to the contrary. The Supreme Court of Connecticut agreed when it held in State v. DeCiccio, 105 A.3d 165 (Conn. 2014), that “widespread acceptance of batons within the law enforcement community also supports the conclusion that they are not so dangerous or unusual as to fall outside the purview of the second amendment.”

The Kolbe majority also defied Heller by applying intermediate scrutiny in a form that resembles rational basis review. Such treatment of Second Amendment claims is old news, best expressed by members of the Supreme Court dissenting from denials of certiorari here, here, here, and by a half-hearted GVR[3] and earnest concurrence protesting the lower court’s “ill treatment of Heller”[4]. Two points, however, merit discussion.

First, Fourth Circuit intermediate scrutiny requires (in the majority’s words) “the government to show that the challenged law ‘is reasonably adapted to a substantial governmental interest.’” In other words, although the means chosen to limit, in this case, unlawful shootings by “assault weapons” need not be the least intrusive one, it must be as unobtrusive as reasonably practical. In Maryland’s case, as the panel opinion noted, the state already required registration of “assault weapons” before the ban was enacted. The national experience with the holders of concealed-carry licenses suggests that those who will register are exceedingly law-abiding and trustworthy with their guns, as compared to the general population and even as compared to police.[5] Thus, Maryland already had in place a scheme that would ensure that the banned weapons would not be misused.

Second, like other courts attempting to limit Heller to its facts, the Fourth Circuit opined that Heller struck down only a ban on handguns, “the quintessential self-defense weapon,” in the home; since the weapons at issue were not handguns, these could supposedly be banned. This again shows blatant defiance of the Supreme Court. Heller also struck down a ban on keeping operable long guns in the home; keeping them inoperable renders long guns unusable for self-defense. Not only that, the banned weapons are far better for home defense than handguns because they are more accurate and more powerful than handguns.

Law-enforcement officers routinely say their handguns are underpowered, and that they carry them only because they are portable, not because they are optimal for defense of self and others. Indeed, that is why officers are issued “assault weapons.” What applies to officers on the street applies with equal force to the citizen defending against a home invasion (which is how the banned weapons would be used, given that Maryland does not allow them to be carried in public).

This takes us to the question of Maryland’s ban on the transfer of large-capacity magazines (LCMs) capable of holding more than 10 rounds. As with the law-enforcement exception for banned firearms, the majority upheld an exception for LCM transfer to law-enforcement officers, citing their training in LCM use and storage. But citizen owners are just as capable of obtaining this training, and hobbyists typically train far more frequently than the annual instruction required of Maryland officers. At a bare minimum, applying intermediate scrutiny in an intellectually honest manner would have led the court to strike the LCM (and “assault-weapon”) ban on the ground that the safety levels seen by police officers could be achieved by requiring the same training of citizen owners.

More importantly, there is no meaningful evidence that LCMs are deadlier in mass or other criminal shootings. This fits with the conclusion reached in studies showing that 1) LCMs are unlikely to increase casualty counts because most mass shooters carry multiple guns, carry multiple magazines which can be quickly changed, and, in any event, maintain such slow rates of fire that the time needed to reload would not increase the time between shots[6]; and 2) that LCM availability is unconnected with “the number of murders, the murder rate, the number of gun homicides, the gun homicide rate, or deaths and in jury caused by public shootings.”

One oft-cited (including by the Kolbe majority) study sponsored by the National Criminal Justice Reference Service examining the effect of the federal government’s 1994 ban on “assault weapons” did find more shots fired, victims hit, and wounds per victim in shootings in which LCMs were involved. The NCJRS study concluded, however, that “the evidence on these matters is too limited (both in volume and quality) to make firm projections of the ban’s impact” and that “the ban’s impact on gun violence is likely to be small at best, and perhaps too small for reliable measurement. . . .  [I]t is not clear how often the outcomes of gun attacks depend on the ability to fire more than 10 shots . . . without reloading.”

These studies did not compare the number of deaths in LCM versus non-LCM shootings. A study done for a court case challenging Colorado’s 15-round LCM ban found, at a very low level of reliability that was far from statistical significance, that in shootings in which sub-15-round magazines were used, the number of deaths decreased by 0.4 per incident. This figure, even if accurate, must be weighed against the benefits of the massive number of annual defensive gun uses, estimated by skeptics to be 100,000 on the low end, but more likely to be around 700,000.[7]

It is absurd for the Fourth Circuit Court of Appeals to have upheld a ban on in-home possession of firearms that are used in some fraction of the nation’s 636 long gun murders in 2016 when the Supreme Court held that the handguns responsible for 7,105 murders that year receive Second Amendment protection. Worse, perhaps, is the U.S. Supreme Court’s delegitimizing refusal to review blatant affronts to its authority.

[1] Josh Sugarmann, “Assault Weapons and Accessories in America,” Violence Policy Center, Washington, D.C., 1988.

[2] A Maryland State Police sergeant emailed the following on November 21, 2017 to an anonymous recipient: “Maryland State Police uses the Colt 6920 AR-15 rifle.” (Names withheld to protect confidentiality.)

[3] “GVR” stands for “grants, vacates, remands.” The term is used semi-colloquially among attorneys to refer to cases where the Supreme Court grants certiorari, vacates the case, and remands for application of the proper law without hearing the case.

[4] Another defiant case for which a dissent from denial of certiorari was not written is Drake v. Filko, 724 F.3d 426 (3d Cir. 2013), which is discussed in Robert J. Cottrol and George A. Mocsary, “Guns, Bird Feathers, and Overcriminalization:  Why Courts Should Take the Second Amendment Seriously,” Georgetown Journal of Law and Public Policy 14:17 (2016), 31-33.

[5] For data collected from state licensing agencies, see Nicholas J. Johnson, David B. Kopel, George A. Mocsary, and Michael P. O’Shea, Firearms Law and the Second Amendment: Regulation, Rights, and Policy, Aspen Casebook Series (Wolters Kluwer Law and Business, Second Edition, 2017), pp. 50-51.

[6] “Pauses” long enough to allow potential victims to escape that are not the result of slow rates of fire typically result from gun malfunctions (which take significantly longer to correct than the time to change a magazine), and those committing gun crimes often eject magazines before emptying them. See, for example, Joint Appendix at 3543-48, Colorado Outfitters Association v. Hickenlooper, 823 F.3d 537 (10th Cir. 2016) (Nos. 14-1290, 14-1292).

[7] Firearms Law and the Second Amendment, Second Edition, pp. 6, 18-21. (Estimates range to more than 3,000,000.)

Reader Discussion

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.

on December 20, 2017 at 12:53:06 pm

When the Supreme Court abolished mandatory certiorari review, it ceased to be a supreme court. lt knowingly ensured that its decisions would be advisory only.

This happened almost 100 years ago. The professor should have figured this out back in law school.

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Alana
on December 20, 2017 at 15:54:43 pm

Yes, the term "assault weapon" was coined in 1988, but the term "assault rifle" (Sturmgewehr) goes back to at least World War II Germany.

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SS
on December 20, 2017 at 16:00:27 pm

The Fourteenth Amendment's equal-protection-clause prevents a caste system like in Europe, where the police can have equipment (like semi-automatic weapons and switchblades) that "ordinary civilians" can't.

A police state is, by definition, a state where the police can own and use equipment on the job that non-police can't. A democratic state is where the people have a right to own, carry, and use anything that isn't prohibited to police.

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George O.
on December 20, 2017 at 23:02:18 pm

[…] Read more[…] […]

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Defying the Supreme Court in Kolbe v. Hogan – Top 100 Blog Review
on December 21, 2017 at 15:35:33 pm

Your point, being......?

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Lucius Severus Pertinax
on December 21, 2017 at 18:17:04 pm

His point is that the author is wrong. The long, looooong, understood definition for "assault rifle" denotes a full sized rifle that shoots a mid power cartridge, so that it is a trade off between a submachine gun with less range and power (which use handgun rounds) and the power of full size rifle cartridges that has a lower rate of fire and more recoil and weight.

The pro-gun parsing of the "assault rifle" term is whether the gun is select fire or full auto or semi-auto. However, the original understanding of what made an "assault rifle" and "assault rifle" did not hinged merely on whether it fired full auto or not; it had to have a compilation of other features, mostly that it fired a mid sized cartridge. Hence the only difference, really between an assault rifle (military) and an assault rifle (civilian), is whether the gun fires full auto or not; they are essentially the same type of gun....assault rifles, in the original meaning of the term going back to the German Sturmgewehr. It is a stupid distinction in fact, but it makes a HUGE difference in the law though, due to the 1934 Gun Control Act and the 1986 Gun Owner's Protection Act.

Look, the anti-gun left sees a black gun and gets scared, and they don't care about the full-auto/semi-auto distinction. They don't understand it and won't take the time too. The pro-gun crowd is making this worse by insisting that "these are NOT assault rifles, *see* they don't fire full auto, they are 'modern sporting rifles', nothing to be scared of." Moreover, they say this with a straight face when they are, actually, assault rifles by definition and actuality. I say so what if they are assault rifles, embrace the anti-gun term because it is, if nothing else, accurate. An AR-15 is an assault rifle. The 2nd Amendment gives us the right to have semi-auto assault rifles, and should give us the right to have full auto ones (but that will never happen).

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mad_kalak
on December 21, 2017 at 19:27:31 pm

Interesting indeed!

Question:

How does one then characterize rifles employing a 7.62mm round? This is more than mid-power.
Yep, the AR-15 ? M16 / M4's of the world use .223 or 5.56mm - they are mid power. Yet, the M16 round, for example was designed to 'tumble" and as a consequence could theoretically have as much stopping power as a larger round.

So, the point being that all this assault rifle nonsense ultimately resolves itself into the presently configured argument: semi- or fully automatic.

Unfortunately, the anti-gun nuts on the left have been too fond of Dan Rather, whio you may recall commented,"If it looks like a duck, and walks like a duck, then it is a duck"
Unfortunately that *august* (self-)eminence failed to include "quacks like a duck" - The AR-15 most assuredly DOES NOT QUACK like a duck; rather like a sparrow with a broken wing! (Apologies to Bob Dylan).

As for me, I am still hopping to be able to park an Abrams tank on my front lawn!!!!!!

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gabe
on December 22, 2017 at 00:30:01 am

The 2nd Amendment says "keep and bear", can you carry a tank? No? Then the 2nd Amendment does not apply, even though private citizens at the time of the founding often had cannons for the militia and this was not seen as a problem.

The 5.56 round was not intended to tumble. A gun shop myth, its tumble was a result of the bullet weight, design, and rifle twist in the original Eugine Stoner design on the AR. The less than perfect spin on the bullet, as a consequence of that, inhibited accuracy. In the end, a bullet weight and rifle twist was changed to improve accuracy and the tumble was eliminated.

Which 7.62? The x39 for the sks and kalishnikov rifles? That is a mid size cartridge, and the AK-47 design was lifted from the German assault rifle by the late Mr. Kalishnikov. 7.62 x54 is the full size rifle round from the Mosin-Nagant bolt action rifles. Are you unfamiliar with the metric system, rifles in general, or what?

Point is, what makes a gun an "assault rifle" or not has not much to do with fully auto or not, but a range of features, and predominantly what makes a gun an assault rifle is the mid sized round it fires. But that is also why trying to classify what is and is not an assault rifle is an idiotic exercise for the purpose on a law against them. It is why there are a dozen workarounds to state bans on them based on things like whether it has a pistol grip or a bayonet lug or not. When's the last time you ever heard of a bayonet on the end of a gun used in a crime? It is also why there are stupid inconsistencies in said bans, where one gun is banned but another is not, merely by the looks of the thing...and that a common deer rifle is deadlier and the whole effort is pointless as it is handguns that are mostly the ones used in crimes with guns.

So I am not taking your bait, anymore than I already have. What is your goal here?

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Mad_kalak
on December 22, 2017 at 08:43:15 am

Professor Mocsary's is a fine analysis of a bad decision by the Obamanized Fourth, the Great Chief's Circuit, once in olden times Appalachian-solid wearing now the hollow crown of blue state dirigisme and bearing the bane for us freedom lovers imprisoned in the Peoples Republic.

"Maryland, My Maryland!"

"Thou wilt not yield the Vandal toll,
Maryland!
Thou wilt not crook to his control,
Maryland!
Better the fire upon thee roll,
Better the blade, the shot, the bowl,
Than crucifixion of the soul,
Maryland! My Maryland!"

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timothy
on December 22, 2017 at 11:21:50 am

Actually, we are in agreement. My point was to simply say that there is no solid basis for the claims by the gun control types that the AR15 and similar rifles are assault rifles and that a clever person can invent any false distinction they want to in order to advance their particular position BUT the one single one that seems to make sense to people is auto vs semi-auto. It is a distinction with some utility, is it not. without that distinction, we are once again arguing over cosmetic differences, or rather, similarities - it may look like a duck BUT it doesn't quack like a duck.

And yes, I have fired Mosin-Nagant rifles. They pack a punch.

My goal was to simply highlight the difficulty for the average voter of distinguishing the one from the other and as a purely practical matter suggest that we simply use the semi- vs. fully automatic argument.

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gabe
on December 23, 2017 at 12:51:19 pm

And if you want to see just how *wise* the Black Robes are when it comes to "gun control, there is this:

https://bearingarms.com/tom-k/2017/12/22/want-know-gun-registration-doesnt-impact-criminals/

" There are many U.S. cities and states which require registration of firearms and elaborate licensing schemes. You might think that this is the sort of infringement which is prohibited by the Second Amendment of the Constitution. While the U.S. Supreme Court has affirmed the Second Amendment as an individual right, it will be years before unconstitutional city and state laws are challenged and struck down.

The application of the Fifth Amendment is more defined. In the case of Haynes v. United States, (1968) the requirement to register guns has been ruled an unconstitutional infringement for a certain protected class. The good news is that you can readily join this class. The bad news is, you have to become a felon or prohibited person to enjoy freedom from registration.

Haynes v. United States, 390 U.S. 85 (1968), interpreted the Fifth Amendment to the United States Constitution‘s self-incrimination clause. Miles Edward Haynes was a convicted felon who was charged with failing to register a firearm under the National Firearms Act of 1934. Haynes argued that as convicted felon prohibited from owning a firearm, requiring him to register was essentially requiring him to make an open admission to the government, a violation of his right not to incriminate himself.

The Supreme Court ruled in favor of Haynes in a 7-1 decision. This decision blocks state prosecutions of criminals who fail to register guns as required by state law gun registration schemes. Law abiding citizens must comply with the schemes and pay the associated fees."

Yep, GUN CONTROL really works doesn't it?

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gabe
on December 26, 2017 at 10:51:38 am

Meh. I guess that legally works, using "automatic fire" and "semi-automatic fire" as the distinction between what is and isn't an "assault rifle." It is historically (and militarily) incorrect. It is, however, legally convenient, especially given how automatic weapons are regulated in the U.S. We are only using the term "assault rifle" due to the translation from German, as they were the first to come up with the concept.

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mad_kalak
on February 19, 2018 at 22:36:17 pm

Professor Mocsary, if you believe large capacity magazines and weapons such as the AR-15 aren’t lethal weapons that have been used to wage war against innocent children and others then you’re nothing but a tool of the NRA, a true organization of terror. Just because someone wants to get their gonads off, or to even prove they have gonads, doesn’t warrant the existence of such weapons in the hands of civilians. And, if you think that a civilian militia can hold off a modern military force, well don’t let that drone bite you in the butt.

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Ric Stephenson
on March 08, 2018 at 22:14:25 pm

I read Professor Mocsary's article and the comments that followed it here. The article is constitutional nonsense. Kolbe relied on language in Heller; it didn't defy Heller. The article advances arguments, like the need for strict scrutiny, that were rejected by the Kolbe court. Here's an article I wrote, which I believe puts to rest lots of fictions to which you folks subscribe:

Whatever the Founding Fathers may have intended in the late 1780's, the 2008 Supreme Court decision that is worshiped by gun lovers makes it abundantly clear that the private right to keep and bear arms does not include military weapons. In District of Columbia v. Heller, 554 U.S. 570 (2008), Justice Scalia, speaking for the five member majority, mocked the idea of armed revolution against today's military forces:

"IT MAY WELL BE TRUE TODAY THAT A MILITIA, TO BE AS EFFECTIVE AS MILITIAS IN THE 18TH CENTURY, WOULD REQUIRE SOPHISTICATED ARMS THAT ARE HIGHLY UNUSUAL IN SOCIETY AT LARGE. INDEED, IT MAY BE TRUE THAT NO AMOUNT OF SMALL ARMS COULD BE USEFUL AGAINST MODERN-DAY BOMBERS AND TANKS. BUT THE FACT THAT MODERN DEVELOPMENTS HAVE LIMITED THE DEGREE OF FIT BETWEEN THE PREFATORY CLAUSE AND THE PROTECTED RIGHT CANNOT CHANGE OUR INTERPRETATION OF THE RIGHT."

Even if those words weren't enough, here's further proof that citizens have every right to ban military style weapons and high capacity magazines. A constitutional challenge to a Maryland statute that banned assault weapons and high capacity magazines was denied by a 4th Federal Circuit Court of Appeal decision in 2016 That case is Kolbe v. Hogan, 813 F.3d 160 (4th Cir. 2016). More recently, the US Supreme Court declined to hear a further appeal (refused to grant certiorari) of Kolbe. Three other federal appellate court cases have come to the same conclusion as the Kolbe court.

That means that the Supreme Court itself implicitly authorized citizens to vote to ban assault weapons and high capacity magazines and has made clear that the Second Amendment won't prevent them from doing so. Political majorities could, if they choose to, also ban bump stocks or any other firearm accessory that enables firing rounds of bullets rapidly.

This conclusion implies that so-called "patriots" who believe with every fibre of their being that the 2nd Amendment, when it was drafted, contemplated taking up arms against this nation's' military forces whenever those "patriots" came to believe that government is becoming oppressive or tyrannical are dead wrong. Indeed, if they were to do so and kill anyone when violently trying to overthrow government, they will be treated as domestic terrorists and executed for murder just as Timothy McVeigh was. In a democracy, protecting America from oppression or tyranny is to be accomplished in voting booths only, not on killing fields within our borders. The days of firearm enthusiasts carrying intimidating semi-automatic weapons into pancake and donut shops are fast coming to a close. Foolish macho dudes in military fatigues who've openly carried AK-47s, AR15s, etc. in public better start hiding them as their possession will be criminalized within just a few years.

Although gun lovers can still keep handguns and shotguns to defend themselves in and outside their homes, can still go to target practice, and can still use rifles to hunt animals, as clearly enunciated in Heller, the political majority's repugnance for military types of rapidly firing killing/maiming devices used in mass shootings--which stands at 67% as of March 8, 2018--will triumph over the constitutional claptrap to the contrary put out by the NRA. The writing is already on the wall."

People like Professor Mocsary can bemoan Kolbe as a constitutional mistake, but Kolbe only extended Heller's clear distinction between military weapons and private weapons that enjoy constitutional protection. Moreover, Heller itself approved of laws precluding the presence of firearms from "sensitive places," explicitly mentioning schools as one of them. Delaying the completion of gun purchases until background investigation can be concluded was also approved by the Heller majority. You all should actually read Heller before misstating what it says or implies.

Michael L. Marowitz
JD, JSM(Master's Degree in Law emphasizing constitutional law, Stanford Law School, 1981).

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Michael L. Marowitz
on March 28, 2018 at 14:39:54 pm

The ONLY reason fully automatic firearms are not in "widespread circulation" today is because they've been UNLAWFULLY denied to the public without significant "infringement" since 1934! Our courts are downright criminal -
especially these days as they're simply REFUSING TO HEAR and, therefore, having to remand, 2A cases that they know have been wrongly decided! It's criminal right up to and including the majority on our so-called Supreme Court and WTP MUST make it stop now! feiw

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Diamondback
on July 28, 2019 at 15:39:00 pm

Apparently 4th Circuit Court Chief Judge Roger Gregory and Circuit Court Judges Robert Bruce King, J. Harvie Wilkinson III, Diana Gribbon Motz, Barbara Milano Keenan, James A. Wynn Jr., Henry Franklin Floyd, Stephanie Thacker, Pamela Harris, Stephanie Thacker, Paul V. Niemeyer, Dennis Shedd, and G. Steven Agee never read the seminal Supreme Court decision on gun control laws, ‘United Sates v. Jack Miller and Frank Layton’ (307 U.S., 174, 26 F.Supp. 1002), which ruled that ONLY a weapon which in “its use could contribute to the common defense” are protected by the 2nd Amendment. Moreover, the ‘Miller’ court specifically noted that “...when called for service these men [‘the militia’] were expected to appear bearing arms supplied by themselves and of the kind in common use at the time.”

And just which ‘arm’ would that be today, since the selective-fire M16 has become prohibitively expensive (or, WRT those manufactured after 19 May of 1986, prohibited for purchase and/or possession by non-U.S. military/non-LE), the ONLY ‘arm’ readily available IS the ubiquitous semi-automatic-ONLY AR-pattern rifle (or the semi-automatic-ONLY AK-pattern rifle).

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Juanito Ibanez
on July 28, 2019 at 15:49:07 pm

Mikey Marowitz; seeing as how you like quotes from ‘Heller’, try these “on for size”:

“It may be objected that if weapons that are most useful in military service—M-16 rifles and the like—may be banned, then the Second Amendment right is completely detached from the prefatory clause. But as we have said, the conception of the militia at the time of the Second Amendment’s ratification was the body of all citizens capable of military service, who would bring the sorts of lawful weapons that they possessed at home to militia duty. It may well be true today that a militia, to be as effective as militias in the 18th century, would require sophisticated arms that are highly unusual in society at large. Indeed, it may be true that no amount of small arms could be useful against modern-day bombers and tanks. But the fact that modern developments have limited the degree of fit between the prefatory clause and the protected right cannot change our interpretation of the right.”
–District of Columbia v. Heller, 554 U.S. 570 (2008), Justice Antonin Scalia—Majority Opinion

“Some have made the argument, bordering on the frivolous, that only those arms in existence in the 18th century are protected by the Second Amendment. We do not interpret constitutional rights that way. Just as the First Amendment protects modern forms of communications, e.g., Reno v. American Civil Liberties Union, 521 U. S. 844, 849 (1997), and the Fourth Amendment applies to modern forms of search, e.g., Kyllo v. United States, 533 U. S. 27, 35–36 (2001), the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding.”
–Ibid.

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Juanito Ibanez

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.