A great deal of progress has been made in the vindication of the fundamental, inalienable right to keep and bear arms affirmed by the Second Amendment. For much of the life of the republic, it was a second class right of undetermined application, until, that is, District of Columbia v. Heller (2008) and McDonald v. City of Chicago (2010).
In those landmark cases, the Supreme Court finally declared the Second Amendment spoke to an individual right to keep and bear arms, such arms being those weapons in “common use.” The Court specifically referred to handguns, and the most commonly used handguns in America are semiautomatic pistols. McDonald applied the Second Amendment to the states. Unfortunately, the Court, which declared all Second Amendment issues must be decided through the application of strict scrutiny, the most rigorous standard applied to all other fundamental, unalienable rights, neglected to resolve a great many other issues.
Heller implies citizens must have some means of carrying handguns outside the home, otherwise the right means essentially nothing, yet the Court left this issue untouched. Is concealed carry an unalienable right? Open carry? Weapons in “common use,” would logically include the most popular and widely used rifles in America, the AR-15 family, yet this too was not specified. What too of accessories in common use, such as the 17 round, standard magazines of the Glock 17 or the 30 round standard magazines of the AR-15?
The majority opinion of Heller also made short work of the old argument that the right to keep and bear arms applied only to members of a government organized militia, or that only arms particularly suited to militia use were constitutionally protected.
However, the minority opinion in Heller, while grudgingly admitting the Second Amendment spoke to an individual right to keep and bear arms, saw no gun control measure that would not be allowable. Should the Heller minority ever prevail, the Second Amendment would exist only on paper. It would have no application in the lives of individual Americans.
Politically, gun control has, since Heller and McDonald, continued to be deadly to Democrats. After the Newtown, CT Sandy Hook Elementary School massacre (2012), then-President Obama tried to dance on the graves of children by enacting all manner of anti-liberty measures. Despite the fact the killer actually used an AR-15—a rarity—Mr. Obama’s emotional manipulation fell flat. Hillary Clinton actually ran for president promising to work every day to enact gun control measures. There can be little doubt that, as well as her many other deficits, defeated her.
It might be easy to make the mistake of thinking with Donald Trump in the White House, gun control is, for four to eight years, dead. That would be a serious mistake. Leftist politicians never stop trying to impose tyranny, and taking the guns of the law abiding is ever a necessary condition for the imposition of tyranny. The Federal courts have been packed with anti-liberty leftists, and they too never rest, as Charles Cooke, at National Review, reports:
Freed up by the Supreme Court’s ongoing reluctance to engage in depth with the Second Amendment, the Fourth Circuit has taken it upon itself to rewrite Heller en banc. In a 10–4 decision, issued yesterday afternoon [02-21-17], the court upheld Maryland’s ban on both ‘assault weapons’ and ‘high capacity magazines.’ [skip]
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.
Lest anyone think common, everyday weapons are not caught up in this anti-liberty net, consider that today’s military uses common, pump-action, 12 gauge shotguns for a variety of purposes. Virtually all handguns used by the military are semiautomatic pistols. The military also uses a variety of scoped bolt action rifles virtually identical to those available to the general public, and gun banners have, from time to time, tried to ban “sniper weapons.” Under the 4th Circuit’s lunatic standards, even common knives are fit for military service and thus subject to blanket bans.
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 “dangerous and unusual” portion of Heller refers to things such as hand grenades, explosives, cannon, anti-tank missiles, and similar genuine weapons of war. None of these weapons are at issue among supporters of the Second Amendment, with the exception of common submachine guns and suppressors, none of which are addressed by Heller.
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.
Actually, I suspect the number of magazines is substantially greater than that. Cooke’s article explains the 4th Circuit’s majority’s stunning lack of knowledge of firearm technology, conflating semiautomatic firearms with fully automatic firearms, as anti-liberty activists commonly do.
Most worrying of all, the majority concludes its trail of destruction by playing preemptive games with the standard of review. Because it sets ‘assault weapons’ outside of the Constitution’s remit, the majority never reaches the question of scrutiny. But it nevertheless wants us to know that it would have applied intermediate scrutiny, and that the law in question would have passed without difficulty. This is extraordinary. For a start, if the majority had decided that the Second Amendment applied, it would have been duty bound to apply strict scrutiny. As Judge Traxler notes, ‘once it is determined that a given weapon is covered by the Second Amendment, then obviously the in-home possession of that weapon for self-defense is core Second Amendment conduct and strict scrutiny must apply to a law that prohibits it.’ From where, one might ask, did he get that idea? The answer: From United States v. Hosford. And which Circuit decided that case? The Fourth. Not content simply to break with its own precedent, the majority then has the gall to justify its departure as if Heller had never been issued. How else to account for the submission that Maryland’s prohibition on ‘assault weapons’ does not restrict the ‘core lawful purpose’ of the Second Amendment because the state hasn’t touched other sorts of weapons — an argument that was explicitly rejected in Heller?
Clearly, the majority of the Fourth Circuit, like the minority in Heller, is determined to ignore the Supreme Court and the Constitution to achieve a legislative result the left cannot obtain through the legislative process. So what? The Supreme Court can overturn the Fourth Circuit. Perhaps, but this is not automatic.
Unless the decision is appealed to the Supreme Court, and unless the Court votes to hear the case, citizens of the states covered by the Fourth Circuit will continue to be denied their constitutional rights until such time as their blatantly unconstitutional decision is overturned–if it ever is. Though it appears Judge Gorsuch might be the kind of judge that would uphold the Second Amendment and the precedent established in Heller, this is not a certainty. Nor is it a certainty that Justice Kennedy would continue to vote with the majority. The Second Amendment, not just on the fringes, but in its entirety, continues to hang on a slim, 5/4 majority in the Supreme Court.
Beyond these legal issues lurks a much more disturbing issue. More and more, Americans have come to distrust the judiciary. Ultimately, our system of justice and government can function only if most citizens have faith in it, only if they have faith the courts will ultimately vindicate the Constitution and the rule of law. When that faith is lost, our society is lost, America is lost. Obviously lawless decisions like that of the Fourth Circuit are crude assaults on the stability of the Republic. There may be no issue on which that faith balances more precariously than the Second Amendment.