Feb 22, 2017

Shares5 America. (Photo Courtesy of Getty) The Fourth Circuit upheld Maryland’s assault rifle ban. 10 – 4. And they did while citing D.C. v. Heller as precedent. Heller, y’all. The Fourth Circuit took the biggest pro-gun death decision of our generation, and used it to justify a broad ban on weapons and bullets. It’s legal jujitsu with a dollop of “come at me, bro.” The Maryland Firearm Safety Act (FSA) bans 45 different kinds of assault weapons and imposes a 10-round limit on gun magazines. Judge Robert King , a Clinton appointee, goes right after Heller. From the decision : We conclude — contrary to the now vacated decision of our prior panel — that the banned assault weapons and large-capacity magazines are not protected by the Second Amendment. That is, we are convinced that the banned assault weapons and large capacity magazines are among those arms that are “like” “M-16 rifles” — “weapons that are most useful in military service” — which the Heller Court singled out as being beyond the Second Amendment’s reach. See 554 U.S. at 627 (rejecting the notion that the Second Amendment safeguards “M-16 rifles and the like”). Put simply, we have no power to extend Second Amendment protection to the weapons of war that the Heller decision explicitly excluded from such coverage. Nevertheless, we also find it prudent to rule that — even if the banned assault weapons and large capacity magazines are somehow entitled to Second Amendment protection — the district court properly subjected the FSA to intermediate scrutiny and correctly upheld it as constitutional under that standard of review. I mean King simply follows Heller like a good circuit judge who is in no way daring a divided Supreme Court to tell him that he’s wrong. Look, according to Heller, the Second Amendment covers a personal firearm for self-defense. It does not contemplate an indelible right to own a tank. Somewhere between a revolver and a tank lies the assault rifle, and King is saying that assault rifles fall on the other side of the line, outside the scope of constitutional protection. Judge William Traxler, also a Clinton appointee, disagreed: Today the majority holds that the Government can take semiautomatic rifles away from law-abiding American citizens. In South Carolina, North Carolina, Virginia, West Virginia and Maryland, the Government can now tell you that you cannot hunt with these rifles. The Government can tell you that you cannot shoot at targets with them. And, most importantly, the Government can tell you that you cannot use them to defend yourself and your family in your home. In concluding that the Second Amendment does not even apply, the majority has gone to greater lengths than any other court to eviscerate the constitutionally guaranteed right to keep and bear arms. You can hear the… frothing. I know we live in a deeply divided nation and I know that we have different cultural sensibilities, but there’s something so perfectly absurd about “YOU CANNOT SHOOT AT TARGETS WITH THESE RIFLES,” that you have to step back and laugh. We’re trying to figure out how to live in a modern society without killing each other… BUT THINK OF THE SKEET SHOOTERS. Traxler has other, less hysterical points. He writes: [T]he Second Amendment protects those weapons “typically possessed by law-abiding citizens for lawful purposes.” Id. at 625. By contrast, “the carrying of ‘dangerous and unusual weapons’” has been prohibited as a matter of “historical tradition.”… If a weapon is one “typically possessed by law-abiding citizens for lawful purposes,” Heller, 554 U.S. at 625, then it cannot also be a “dangerous and unusual” weapon in a constitutional sense. This is a lucid argument. My reading of Heller is that it allows any gun that any collection of Doomsday Preppers claim people regularly use. I think it’s just as horribly permissive as Traxler does. I think it’s one of the worst decisions ever written, and King trying to sanitize it assumes a limiting principle Heller simply doesn’t adopt. But if you listen closely, you can hear Neil Gorsuch’s music. The Fourth Circuit has ruled, and a deadlocked Supreme Court can’t stop them. The four justices who dissented in Heller are likely to adopt King’s limitations on the ruling. The four justices left alive who supported Heller are likely to agree with Traxler’s dissent. Merrick Garland is the deciding vote. I mean Gorsuch. If you think that Republicans went through all the trouble of stealing a seat on the Supreme Court to nominate a guy who is going to weaken Heller, you simply haven’t been paying attention to the clay pigeon genocide that’s been happening in this country. Elie Mystal is an editor of Above the Law and the Legal Editor for More Perfect . He can be reached @ElieNYC on Twitter, or at elie@abovethelaw.com . He will resist. Shares5