Posted on 02/23/2017 8:30:03 AM PST by SeekAndFind
It looks like Neil Gorsuch is going to have his plate full when he finally takes his seat on the Supreme Court. The Fourth Circuit Court of Appeals has been busy uprooting the Second Amendment this week, delivering a stunning opinion which essentially overturns the Heller decision without so much as a by your leave to SCOTUS. It involves a case out of Maryland where the state’s Democrats decided to ban “assault rifles” and high-capacity magazines. Apparently the idea of precedent is not something they care to have any truck with, as Charles C.W. Cook explains at National Review.
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, the court upheld Maryland’s ban on both “assault weapons” and “high capacity magazines.” By so doing, it deprived the people of Maryland, the Carolinas, and the Virginias of the core protections to which the Constitution entitles them.
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.
Pardon my language, but where the hell did the phrase R#8220;most useful in military service” come from? As Charles aptly points out, this is completely new ground which was summoned up out of whole cloth by the majority in this decision. And what does that even mean?
There are two competing narratives which could be applied to these questions. First, let’s look at the ostensible target of the original legislation. They were going after the AR-15 and its related cousins in the firearms market. This begs the question of how many AR-15 style rifles are currently in use. On the civilian side, the NRA estimates that more than 5 million households have one. In a single seven day span last year following the Orlando shooting, more than 30,000 were sold. But how about the military? As it turns out, the rifles under discussion are civilian models which only fire one shot each time the trigger is pulled. The military doesn’t use them. So technically, calling this particular firearm “most useful in military service” is a complete red herring since the military has no interest in them.
But that’s not to say that the weapon couldn’t be used in a military scenario for the purpose of killing the enemy. (Even though the AR-15 is a somewhat under-powered platform.) The same could be said, as Charles points out, for most standard hunting rifles. If you really have to kill the enemy a good 30:06 will get the job done. The same can be said for virtually any semiautomatic handgun of sufficient caliber and they are frequently carried in combat scenarios. Going by the “logic” of the Fourth Circuit court there is almost no weapon of any sort which would fail to meet this test.
Will the Supreme Court actually entertain nonsense like this as some new standard in defiance of all precedent? I can certainly think of four members who might. This is yet another case which demonstrates how important it is to get Neil Gorsuch on the job as quickly and efficiently as possible. This sort of claptrap coming from the lower courts must be kept in check.
Even when Gorsuch is seated we still have the untrustworthy Roberts to contend with.
Term limits when we can have the Constitutional Convention.
Hotair fake news.
The only thing they `gutted’ was their own integrity credibility by ignoring plain, recent black-letter stare decisis (the legal principle of determining points in litigation according to precedent).
All it is is more left-wing judicial activism spitting on the law.
Scotus will reverse it. The 4th is making stuff up as they go.
This is an old trick. SCOTUS can ignore the issue, like it did with appeals courts reading Presser for the opposite of what it said.
You’ve noticed that too I see.
It seems to be the fakebook/youtube effect. Starting a sentence with the words “so”, or “well”, and ending a sentence with the word or statement “right?” just irritates me to no end.
“This sort of claptrap coming from the lower courts must be kept in check.”
I believe the activist judges on the 4th Circuit made the judgement that the Supreme Court would split 4-4 thus resulting in their ruling standing. So, yes we have to get Gorsuch seated right away.
This is actually the reason the Left and the #FakeStreamMedia [but I repeat myself...] are committing sedition in front of God and everybody - they had the Supreme Court in the palm of their murderous hands, and it was snatched away by President Trump.
Five partisan Progtard #FakeJudges were going to tell EVERYONE in the United States when to sit up, roll over, and play dead.
I maintain that the Democrats/#FakeStreamMedia are going to dispute the seating of EVERY Trump Supreme Court nominee on the grounds that President Trump is "illegitimate".
Scott Adams, Master Persuader, identifies the use of "so" at the beginning of a sentence as a "tell" for "cognitive dissonance".
Much of the time, it's a restatement of the actual facts or quote to create a strawman which can be attacked.
Thanks. I’m in good company.
Interesting. I’ll have to check out his blog sometime.
Thanks for point me in his direction.
>
The only thing they `gutted’ was their own integrity credibility by ignoring plain, recent black-letter stare decisis (the legal principle of determining points in litigation according to precedent).
All it is is more left-wing judicial activism spitting on the law.
>
F* that. The only ‘stare decisis’ they had to ‘noodle over’ is the Law of the Land: “keep and bear arms shall not be infringed.”
No other precedent need be consulted.
Now, where’s our worthless, POS D.C. ‘leaders’ and the AGs of each State (not that I expect much from my home state of MD) to remove, like the 9th, those whom no longer judge but write ‘law’??
I went to high school in Maryland (Friendly, Oxon Hill, south of DC). The state is infested with Democrats.
Whether you like it or not, about 2000 years of Anglo-American jurisprudence involves `black letter’ law (statutes) and case law, with statutes taking precedence but stare decisis helping resolve disputes.
As you recognize, the Constitution and Bill of Rights are the final authority.
My point is that the Fourth thumbed its nose at Heller. This will go up.
So what do you do with TEN FAKE judges who refuse to follow the Constitution? ... all ten of these fakers should be impeached. They are activists clothed in black robes.
Even when Gorsuch is seated we still have the untrustworthy Roberts to contend with.
Awfully strange that someone as allegedly as bright as him so tortured the English language and common sense reasoning to uphold ObamaCare!
Why hasn’t Gorsuch been approved by now? McConnell could get it done.
Circuit courts cannot rule against a SCOTUS ruling.
Their opinion is null and void.
.
Black shirt/robe enemies of USA. Really is that simple. Continuing to work to remove the clear right of USA citizens to own firearms, for their protection from any criminals, including unlawful government agents. And protection of USConstitution, insisting that it is the supreme law of the land; black shirts aren’t.
“...In a 10–4 decision, issued yesterday afternoon, the court upheld Maryland’s ban on both “assault weapons” and “high capacity magazines.” By so doing, it deprived the people of Maryland, the Carolinas, and the Virginias of the core protections to which the Constitution entitles them. ...”
Time for folks in those states to raise a ruckus.
Lurkinanloomin wrote: “This is also 180 degrees around from the Miller decision in the 1930’s that upheld the NFA because the short-barreled shotgun was found to NOT be a military weapon.”
That isn’t what the court said in Miller: “In the absence of any evidence tending to show that possession or use of a “shotgun having a barrel of less than eighteen inches in length” at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment, or that its use could contribute to the common defense.”
The court said that the shotgun in question would have been protected if it had “some reasonable relationship” to the militia. The court, in effect, said, no evidence had been presented to that effect and the court couldn’t just assume that it was.
In effect, the 4th circuit is adopting the favorite argument of the gun banners that the 2nd only protects weapons of the militia.
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