Kolbe v. Hogan

Earlier this year, the en banc 4th U.S. Circuit Court of Appeals basically decided to make up their own standard for deciding on 2nd Amendment protections.  They decided that Maryland’s ban on military-style “assault” rifles is constitutional regardless of the standard of scrutiny because the Second Amendment does not give there is no right to own such weapons.

The decision flies in the face of the “common use” language in District of Columbia v. Heller, which Justice Antonin Scalia stated the Second Amendment gives citizens a right to own weapons “in common use at the time.”  However, Justice Scalia also said that not every gun meets that definition. “The Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes,” he wrote in Heller. The Heller opinion specifically cited “the historical tradition of prohibiting the carrying of ‘dangerous and unusual weapons,’” such as “weapons that are most useful in military service—M–16 rifles and the like.”

I have always had a huge problem with “common use” in the Heller decision because on the one hand, it becomes a circular argument.  How can a firearm be used commonly if you ban it?  It becomes the “chicken or the egg” question of which came first.  The other problem with the “common use” opinion is that it can actually fly in the face of the non-specific “dangerous and unusual weapons” that are unprotected.  Aside from the vague definitions, what happens when you’ve got a common use firearm like semi-automatic rifles patterned off of the Colt AR-15 that just so happen to be not only useful in military service, but in self-defense also?

There is another issue with Scalia’s statement:  It flies in the face of United States v. Miller in 1939, the last case the court made a Second Amendment decision on. It is also where the Heller decision gets “common use” from. It states:

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.

Aymette v. State, 2 Humphreys (Tenn.) 154, 158.

So, the Second Amendment protects firearms in the common use that aren’t dangerous and unusual, but also serve the purpose of preserving the militia.

Notice the statement about short-barreled shotguns from the court.  The reason there wasn’t any evidence of that in Miller is because Miller and Layton did not have legal representation after the District Court proceedings and the Supreme Court never heard their views!  There were most definitely shotguns in military service at the time.

Heller case law has done nothing more than affirm a very generalized standard originating from Miller without further examining the facts of the actual Miller decision.  It even discusses military service weapons but presented no knowledge of the infantry and it’s role in relation to bombers and tanks.

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 modem developments have limited the degree of fit between the prefatory clause and the protected right cannot change our interpretation of the right.

To this day, no battle is won, nor ground kept without men and small arms.  Tell the armed forces they don’t need their infantry any longer because of modern-day bombers and tanks.  Armed forces don’t use small arms to effectively shoot at planes and mechanized forces, they use them against other forces shouldering small arms!!

The Heller decision made just as much of a mess as Miller did. Both the “common use” and “dangerous and unusual weapons” tests are extremely problematic.  Plus, Miller was deciding on the legitimacy of the 1934 National Firearms Act’s ability to TAX firearms not in the common use, not actually ban them!

Expecting the court to further clarify these definitions when it has gone out of its way to muddy the waters or specifically not address the problems with the Miller decision is like expecting pigs to fly.  An eye-opening experience would be to listen to the oral arguments made for McDonald vs. The City of Chicago.  This is the case where the Second Amendment is incorporated into the Fourteenth Amendment.  There is an argument to incorporate in the privileges and immunities clause vs. the due process clause.  The court is extremely concerned about ordered liberty and their burden to determine unenumerated rights under the privileges and immunities.  They are solely concerned about what’s easier instead of what’s right.  Scalia even says he’s acquiesced to the due process clause even though he feels it’s wrong.

I’m willing to wager that if certiorari is granted, you’re going to get a very narrow ruling.  I’m also not entirely certain that the court won’t go along with the 4th Circuit’s “dangerous and unusual” classification regardless of the firearms in question being relatively low powered for rifles, and the design being so usual that it’s been around for a century!

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