• Facebook
  • Twitter
  • Subscribe
  • RSS

Fourth Circuit Upholds Maryland’s Ban On So-Called “Assault Weapons”

Assault Weapons

The Fourth Circuit Court of Appeals has upheld Maryland’s law banning certain so-called “assault weapons” in a decision likely revive the debate over gun control and the scope of the Supreme Court’s prior rulings on the issue:

A Federal appeals court upheld Maryland’s ban on assault rifles, concluding that the powerful military-style guns outlawed by the measure are not entitled to protection under the Second Amendment.

The 10-4 ruling, issued by the entire Fourth Circuit Court of Appeals in Richmond, reverses a decision by a smaller panel of judges from the court last year that called the law’s constitutionality into question.

The bill was steered through the Maryland Senate in 2013 by then-Sen. Brian E. Frosh in the wake of the deadly shooting at Sandy Hook Elementary School in Connecticut. Since elected as the state’s attorney general, he has defended the law in court.

Frosh, a Democrat, called the dual role gratifying and said he was very happy with the ruling.

“It’s a very strong opinion and we think absolutely correct,” said Frosh, who called the violence wrought by the now-banned guns “senseless.”

The law, which also outlawed magazines capable of holding more than 10 rounds, was challenged by two men who said they wanted to buy the banned rifles and by a handful of gun stores and associations. They argued that the rifles were popular among gun enthusiasts, used by people to defend their homes and not inherently dangerous. A federal judge in Baltimore disagreed, upholding the law.

A lawyer for the plaintiffs could not be reached for comment Tuesday.

The plaintiffs could appeal the case to the Supreme Court. Frosh said that he’s confident the law will stand should the high court weigh in.

The case is among several that have tested how courts would consider new firearm restrictions in the wake of a 2008 Supreme Court decision — District of Columbia v. Heller — that affirmed an individual’s constitutional right to own at least some types of guns.

In the Fourth Circuit’s decision, which began by recounting recent mass shootings, Judge Robert B. King concluded that the rifles banned by the Maryland law fell outside of the protections laid down by the Supreme Court.

“Both before and after Newtown, similar military-style rifles and detachable magazines have been used to perpetrate mass shootings in places whose names have become synonymous with the slaughters that occurred there,” he wrote.

“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,” King wrote.

Four other courts have upheld similar restrictions in other states, he wrote, and he said the earlier decision by the panel of judges would have made the court an outlier.

In a scathing dissent, Judge William B. Traxler said it was his colleagues who had now gone too far by denying that the guns are covered under the Second Amendment at all.

“The majority has gone to greater lengths than any other court to eviscerate the constitutionally guaranteed right to keep and bear arms,” he wrote.

Even if the weapons were constitutionally protected, Traxler acknowledged it is possible that the Maryland law still might pass muster but said it should be subjected to a stricter review by the court.

This ruling by the full Fourth Circuit overturns a decision issued last year by a three-judge panel that found the law unconstitutional based on the Supreme Court’s rulings in D.C. v. Heller and McDonald v. ChicagoIn both of those cases, though, the Court made clear that it scope of its ruling was limited to the facts of the cases in front of it, which in general involved sweeping municipal laws that made it essentially impossible for an ordinary citizen to own a handgun even in the privacy of their own home. In what was essentially the Court’s first real opinion examining the history and intent behind the Second Amendment, the Court in Heller found that, at the very least, it meant that citizens had a constitutional right to own and possess a gun for personal defense in the privacy of their homes. In McDonald, the Court expanded that ruling to the states via the Incorporation Doctrine, which has applied nearly all of the provisions of the Bill of Rights to the states via the 14th Amendment. In both rulings, though, the Court, in opinions written by Justices Scalia and Alito respectively, though, the Court made clear that the ruling did not preclude the possibility that other laws that fall under the rubric of “gun control” would withstand Constitutional muster. In the process, the Court set in motion a new series of cases in which lawsuits have been filed challenging state and local laws dealing with issues such as the right to carry a gun in public. So far, though, the Supreme Court has declined to get involved in another Second Amendment case since it issued the opinion in McDonald in 2010. In the past four years alone, the Court has declined review in cases challenging the laws regarding carrying guns in public in New York and New Jersey, a San Francisco law that required handguns to be kept locked up when not being used, a case out of Illinois regarding that state’s ban on so-called “assault weapons,” and a pair of lawsuits challenging laws passed by New York and Connecticut in the wake of the shooting at Sandy Hook Elementary School in 2012. With the exception of the final pair of cases, all of these decisions to decline review occurred when the Court had a full compliment of nine Justices, suggesting quite strongly that the Justices are not at all eager to revisit the Second Amendment unless and until it’s absolutely necessary. This suggests that the Court probably won’t take the appeal in this case unless there’s something unusual about the Fourth Circuit case that differentiates from the others, which doesn’t appear to be the case. Additionally, the fact that there is currently not a split among the Circuit Courts on this issue is yet another reason why the nation’s highest court probably won’t take up the appeal here.

As for the decision itself, the reaction has been about what you’d expect, with conservatives such as Charles C.W. Cooke and David French at National Review decrying the ruling and gun control advocates such as Slate’s Mark Joseph Stern generally praising the result. While both sides argue their cases quite well, it strikes me that the critics of the court’s ruling have the better case. In reality, the entire “assault weapons” debate is based on mistaken premises and the fact that many people who support a ban on so-called “assault weapons” don’t really understand what they’re talking about. For the most part, these weapons are no different from standard rifles that have been legal to sell in the United States for a long time, and which remain legal even after the passage of these bans. The main differences lie in the fact that the weapons that people consider to be “assault weapons,” such as the well-known AR-15, are designed to look similar to actual military weapons such as the M-16 and the AK-47. That design appearance, however, is where the similarity ends. Unlike the weapons the military uses, these “assault weapons” are not fully automatic and cannot be modified to have this function unless a gun owner has some rather specific knowledge and the tools to do the job. In the end, the objection to “assault weapons” boils down to little more than the fact that they look scary, which is hardly a legal basis to single them out for a ban. Additionally given the fact that the Court in Heller and McDonald made clear that the right to self-defense, and defense of home and property, was among the purposes behind the Second Amendment, it seems rather obvious that these bans are over-reaching and should not survive a proper analysis under the standards set in Heller and McDonald. As I note above, though, it’s entirely unclear when the Justices of the Supreme Court will see fit to chime in on this issue again.

Here’s the opinion:

Kolbe et al v. Hogan et al by Doug Mataconis on Scribd

Related Posts:

About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May, 2010 and also writes at Below The Beltway. Follow Doug on Twitter | Facebook

Comments

  1. Electroman says:

    these “assault weapons” are not fully automatic

    Neither are M-16s nowadays. Starting with the M-16A2, introduced more than thirty years ago, new M-16s do not have full auto capability.

    Like or Dislike: Thumb up 2 Thumb down 1

  2. Andy says:

    @Electroman:

    They do have a select fire (3 round burst) that is legally considered “automatic.”

    Like or Dislike: Thumb up 5 Thumb down 0

  3. Jack says:

    weapons that are most useful in military service

    Based upon this previously unheard of legal standard, is there a rifle, shotgun, or handgun made today that is not useful in military service?

    Like or Dislike: Thumb up 2 Thumb down 5

  4. Pch101 says:

    In what was essentially the Court’s first real opinion examining the history and intent behind the Second Amendment…

    You must be referring to Miller.

    Like or Dislike: Thumb up 1 Thumb down 0

  5. DrDaveT says:

    @Jack:

    is there a rifle, shotgun, or handgun made today that is not useful in military service?

    What is it about 2nd amendment arguments that makes people drop words here and there all the time?

    The phrase was “weapons that are most useful in military service”. The word ‘most’ matters, as it completely changes the meaning of the sentence if you leave it out. Kind of like “A well-ordered militia being…”

    Like or Dislike: Thumb up 7 Thumb down 3

  6. Jack says:

    @DrDaveT: SO, again. Based upon this previously unheard of legal standard, is there a rifle, shotgun, or handgun made today that is not most useful in military service?

    I’ll wait with baited breath for your reply.

    BTW, it’s “A well regulate militia”…if you are going to be picky about wording, maybe you should fix your own shit first.

    Like or Dislike: Thumb up 2 Thumb down 7

  7. al-Alameda says:

    @Jack:

    BTW, it’s “A well regulate militia”…if you are going to be picky about wording, maybe you should fix your own shit first.

    LOL Jack … “A well regulate ..?
    Good advice for Jack: “maybe you should fix your own s*** first.”
    Here you go, the Second Amendment:
    A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.

    Like or Dislike: Thumb up 4 Thumb down 0

  8. teve tory says:

    well-regulated in the early states usually meant, among other requirements, that the militia members’ guns were registered.

    OH NOES!!!!!!!!!!!!1111

    Like or Dislike: Thumb up 5 Thumb down 1

  9. Jack says:

    @al-Alameda: So, again. No actual answer, just more snark from the regulars here at OTB.

    Like or Dislike: Thumb up 1 Thumb down 5

  10. Jack says:

    @teve tory:

    well-regulated in the early states usually meant, among other requirements, that the militia members’ guns were registered.

    No, they were kept in an armory…which is the reason we have the 2nd amendment.

    Like or Dislike: Thumb up 0 Thumb down 3

  11. Pch101 says:

    @Jack:

    It’s hilarious how you claim to be some expert on the subject of gun rights, yet you don’t understand the basics of the Heller decision that plainly explains why some weapons aren’t covered.

    Next time, get a better metal shop teacher to provide you with your legal training.

    Like or Dislike: Thumb up 3 Thumb down 0

  12. Just 'nutha ig'nint cracker says:

    @Jack: Well, I’m not much of a shooter, but I would say that a shotgun would not be most useful in military service, given that the most useful gun in military service would be the one that could make the cleanest kill at medium range to a helmeted, body armor wearing person. But then again, I was interpreting “most useful in military service” to mean having more applications in killing soldiers than in killing wild birds. I have no idea what you were talking about at all.

    Like or Dislike: Thumb up 5 Thumb down 1

  13. Liberal Capitalist says:

    My .02

    The Heller Decision, which conservative Justice Antonin Scalia wrote the majority opinion, made clear:

    “It may be objected that if weapons that are most useful in military service – M16 rifles and the likemay 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.”[

    So, the decision specially calls out the M16.

    The AR-15, and its variants from various manufacturers, is a direct descendant of the M16.

    That is why rifles and pistols are not discussed in this decision. They are not M16-like as specifically called out in the Heller decision.

    People who would have brought weapons with them from home to make a militia would have brought rifles. The Heller decision expanded that to pistols, but in no way would a continental militia have has an M16 or an AR-15. (nor rocket launchers or nukes, either)

    Why did Maryland decide to ban these weapons. Sandy Hook. A completely knee-jerk reaction to the casual slaughter of 20 children.

    Me?

    I’m OK with this.

    Glad that guns are being banned UNDER PRESIDENT TRUMP

    IMPEACH !!!11!!ONE!!!

    Like or Dislike: Thumb up 4 Thumb down 0

  14. Lit3Bolt says:

    @Liberal Capitalist:

    You bet I’m LOOOOOLing that guns are being taken away by President Trump.

    But apparently it’s ok if imm’grants ‘r punished.

    Like or Dislike: Thumb up 1 Thumb down 1

  15. Liberal Capitalist says:

    @Lit3Bolt:

    But apparently it’s ok if imm’grants ‘r punished.

    Well, as a kid of immigrants, I have to say that I think some people more directly removed from the immigrant experience are kinda f’ed in the head in this administration.

    Hell, Trump’s mom was an immigrant “domestic help” gal that Herr Drumpf decided to marry… maybe it’s Daddy and Mommy issues… who knows.

    But that’s all about politics and not policy, so I get that the rabble can relate to jingoism.

    But the gun thing? Yeah. Sadly that’s not Trump, but Federal Judges.

    I’m sure someone will take it to the Supremes, and then we will see how it plays out.

    OTOH… if the Supremes decide to support the ban, then it becomes a federal ban, rather than Maryland,… so they may not decide to appeal. They may lose the whole thing.

    Like or Dislike: Thumb up 1 Thumb down 0

  16. DrDaveT says:

    @Jack:

    Based upon this previously unheard of legal standard, is there a rifle, shotgun, or handgun made today that is not most useful in military service?

    Duh. A Derringer is quite useful for many things, but warfare is not one of them. Similarly, a biathlon rifle is not particularly well-suited to the needs of a soldier. The list is quite long, in fact… which is obvious to anyone who knows anything about either guns or the military.

    …But you didn’t actually care about that, and will immediately purge this knowledge from your mind.

    I’ll wait with baited breath for your reply.

    Been eating anchovies, or just don’t know how to spell bated?

    Like or Dislike: Thumb up 3 Thumb down 0

  17. michael reynolds says:

    Gun good. Make me man! Bang! Bang!

    I just thought I would summarize the gun cultists carefully reasoned arguments.

    Like or Dislike: Thumb up 8 Thumb down 2

  18. Gustopher says:

    Would it pass legal muster to require all guns sold in the United States to be primarily pink, with sparkles on white detailing? No more than 3% of the exposed surface area to be black, brown or silver? My Little Pony detailing is optional?

    I think it might cut down on the manliness of stockpiling guns.

    Like or Dislike: Thumb up 5 Thumb down 1

  19. Gustopher says:

    @Liberal Capitalist: the Supreme Court can revoke a law (or class of laws) nationally, but they cannot impose a law nationally that was not already national.

    So, if they upheld this ban, they would simply be saying that a state has a right to restrict guns this way, not that the states must.

    For instance, gay marriage is legal because the laws that prevent it are illegal. The Supreme Court didn’t legalize gay marriage, it was always legal, just improperly banned. Same with abortion.

    Like or Dislike: Thumb up 2 Thumb down 0

  20. R. Dave says:

    I’ve never really understood why the Court chose to formulate its own subjective distinctions between guns that are “dangerous and unusual” and “most useful in military service” on the one hand and those that are “in common use” and equally or more useful for non-military purposes on the other hand. It seems to me that even if they held that the 2nd Amendment is not self-limiting, and the intended meaning of “arms” encompasses any and all types of weapons, most gun control proposals, including outright bans on certain classes of weapons, can still survive intermediate scrutiny or even strict scrutiny analysis. For everything short of a categorical ban (e.g., registration, permitting, background checks, etc.), I think the intermediate scrutiny standard requiring an important government interest (in this case, preventing criminals and nutjobs from using guns for illegal purposes) and substantially related means is probably appropriate and likely to be satisfied. And when it comes to the outright ban on things like WMDs (just to dispose of that ridiculous canard), explosive devices, and perhaps even automatic weapons, I think even strict scrutiny would be satisfied, as the state obviously has a compelling interest in preventing mass murder, and an outright ban is likely the least restrictive means of achieving that with those types of weapons.

    Like or Dislike: Thumb up 1 Thumb down 0

  21. Pch101 says:

    @R. Dave:

    Scalia wanted to legalize handguns without legalizing machine guns, RPGs and the like. Hence, this half-assed decision that invented a theory of self-defense out of whole cloth so that this arbitrary line could be drawn.

    Heller was judicial activism at its worst. The original purpose of the Bill of Rights was to protect the states and citizens from the federal government, not to protect citizens from each other.

    The purpose of the Second Amendment was to address the Constitution’s federalization of the militia. Its language clarifies that militias could be deployed to serve state purposes, even though they were organized at the federal level and commanded by the president.

    Madison’s idea of including language that would have excluded conscientious objectors from militia duty was removed. Notes on the 1st Congress’ debate make it pretty obvious that the representatives knew that they were debating an amendment that was addressing service in the militia.

    The Constitution does not address criminal matters because we already had the common law. There was no reason for the Constitution to have addressed self-defense, just as it did not deal with murder, robbery or assault, because that wasn’t the purpose of the document.

    Like or Dislike: Thumb up 3 Thumb down 0

  22. SC_Birdflyte says:

    @Just ‘nutha ig’nint cracker: True. My grandfather’s Remington 12 gauge which he left to me is quite appropriate for home defense. I wouldn’t want to go into ground combat carrying it and nothing else.

    Like or Dislike: Thumb up 0 Thumb down 0

  23. Liberal Capitalist says:

    @Gustopher:

    the Supreme Court can revoke a law (or class of laws) nationally, but they cannot impose a law nationally that was not already national.

    Yes. You are right, of course. The supreme court interprets the constitutionality of laws, not creates them.

    Sometimes far reaching, like Brown vs. the Board of Ed, but that one overturned a previous supreme court decision.

    If the NRA and others are feeling bold, they could take a run to overturn the limitations of Heller… but I don’t believe it would go that way.

    Like or Dislike: Thumb up 0 Thumb down 0

  24. KM says:

    @Gustopher:

    Would it pass legal muster to require all guns sold in the United States to be primarily pink, with sparkles on white detailing? No more than 3% of the exposed surface area to be black, brown or silver? My Little Pony detailing is optional?

    Don’t give the bronies ideas, Gus. That ways lies madness and sparkles.

    Like or Dislike: Thumb up 0 Thumb down 0

  25. KM says:

    @Jack:

    Based upon this previously unheard of legal standard, is there a rifle, shotgun, or handgun made today that is not most useful in military service?

    You seem to be defining “useful” as “any port in a storm”. As in, you’d rather have any type of firearm in a desperate situation then none and thus are using emergency circumstances to dictate normal usage. It’s kinda of like, if there’s a zombie apocalypse, any weapon is better then your bare hands. Theoretical conjecture is all well and good but in reality, you’re not in a foxhole or fighting the undead. Some weapons are designed for war, others for defense, and others for sport. Just because they can all kill doesn’t mean there aren’t appreciable differences that should be used to classify and regulate.

    Interestingly enough, we know what is considered useful in military service because we have a military and they have to make decisions on what goes into the armory / active service. Shouldn’t we be checking in with them on this issue?

    Like or Dislike: Thumb up 1 Thumb down 0

  26. Jack says:

    @SC_Birdflyte:

    True. My grandfather’s Remington 12 gauge which he left to me is quite appropriate for home defense. I wouldn’t want to go into ground combat carrying it and nothing else.

    List of shotguns in service today:

    Mossberg 500 12 gauge All Branches
    Mossberg 590 12 gauge United States Army
    Mossberg 590A1 12 gauge Navy/Army
    Remington 870 12 gauge All Branches
    Benelli M4 Super 90 United States Marine Corps/United States Navy SEALS
    M26 Modular Accessory Shotgun System 12 gauge United States Army

    I own a Remington 870. According to the 4th circuit, because the military uses it, it is “most useful in military service”.

    Like or Dislike: Thumb up 0 Thumb down 1

  27. Daryl's other brother Darryl says:

    Doh…poor Jack’s penile prosthetic is being well regulated…poor boy.
    To have little grasp of the English language, and require a prosthetic…that’s a terrible thing. Dumb and small…

    Like or Dislike: Thumb up 0 Thumb down 3

  28. Jack says:

    @KM:

    Interestingly enough, we know what is considered useful in military service because we have a military and they have to make decisions on what goes into the armory / active service. Shouldn’t we be checking in with them on this issue?

    The US military does not use the AR 15 in service. The AR is a single fire knock off of the M16. Since no service uses, or ever used, the AR, it is not a weapon “most useful in military service”.

    Like or Dislike: Thumb up 2 Thumb down 0

  29. Jack says:

    @Daryl’s other brother Darryl:

    Doh…poor Jack’s penile prosthetic is being well regulated…poor boy.
    To have little grasp of the English language, and require a prosthetic…that’s a terrible thing. Dumb and small…

    Why are you talking about my dick during a discussion on the 2nd amendment? I don’t know you that well.

    Like or Dislike: Thumb up 1 Thumb down 0

  30. Tony W says:

    @Jack: Carrying the right to bare arms a bit too far there.

    Like or Dislike: Thumb up 0 Thumb down 0

  31. Jack says:

    @Tony W: Care to elaborate?

    Like or Dislike: Thumb up 0 Thumb down 0

  32. KM says:

    @Jack:
    Um Jack, you do realize you just refuted your own point? You originally asked “is there a rifle, shotgun, or handgun made today that is not useful in military service” and then proceeded to say AR is not useful.

    This decision is much more logical and consistent then Heller. The fact that its a knockoff doesn’t change the fact that it’s deliberately modeled off a weapon of war with the intent to be a more legal and civilian friendly version. You don’t get to make a knockoff Jaguar and call it it an truck – you are clearly attempting to mimic the specifics of the luxury car and thus it should be classed as such.

    Like or Dislike: Thumb up 0 Thumb down 0

  33. Daryl's other brother Darryl says:

    @Pch101:

    Heller was judicial activism at its worst.

    Well…no…Bush v. Gore was judicial activism at it’s worst…which of course Scalia was in the middle of.
    But Heller was definitely another case of Scalia, the self-proclaimed originalist, being a radical activist.

    Like or Dislike: Thumb up 4 Thumb down 1

  34. Jack says:

    @KM: The cap gun I owned as a child was a knock off of a real pistol, are you suggesting that I can’t own that either? The fact that an AR cannot replicate the “form or function”, a military term for those of you who aren’t familiar with the vernacular, of an M16 means it is not in fact a weapon of war.

    My original post questions the 4th circuit’s decision suggesting that nearly any firearm is a weapon of war.

    Like or Dislike: Thumb up 0 Thumb down 0

  35. Pch101 says:

    @Jack:

    It’s pretty obvious that you know virtually nothing about the Heller decision or constitutional law. Your schlong is probably the only thing that you do know about.

    Like or Dislike: Thumb up 1 Thumb down 1

  36. Jack says:

    @Pch101: I know the Heller decision didn’t use terminology like “weapons that are most useful in military service” while upholding the possession of arms that “were in common use”. The AR is the most common platform in civilian use with over 5 million sold.

    The 4th circuit will be overturned as the language they use in upholding Maryland’s law prohibits practically any rifle, shotgun, or pistol from civilian use.

    A people with guns are citizens. A people without guns are subjects.

    Finally, I must say that was stunningly well thought out commentary. I guess that all of us will just have to bow down, accept your opinion as gospel, and do what you think is best. You are an expert in weapons/use of force, right? Silly me…You’re just some mental midget that works for Wal-Mart. Shut up you Dipshit!

    Like or Dislike: Thumb up 0 Thumb down 1

  37. Franklin says:

    @teve tory: “well-regulated in the early states usually meant, among other requirements, that the militia members’ guns were registered.”

    Not to mention they were, like, muskets or something. The founders might not have envisioned anybody shooting up a movie theater with something that had a flintlock firing mechanism.

    EDIT: Just for clarification, I’m somewhere in the middle on this whole subject. I don’t mind a sane, safe person having a registered gun for basic protection against a burglar or two.

    Like or Dislike: Thumb up 3 Thumb down 0

  38. Jack says:

    @Franklin:

    Not to mention they were, like, muskets or something. The founders might not have envisioned anybody shooting up a movie theater with something that had a flintlock firing mechanism.

    So, what you are saying is the 1st amendment only covers ink and quill or typeset. All that radio, television, internet stuff should not be covered because the founding fathers never envisioned it.

    Get out of here with that bullshit, cupcake.

    Like or Dislike: Thumb up 1 Thumb down 2

  39. Daryl's other brother Darryl says:

    Forget about Jack’s ED problems and his penile prosthetic.
    US citizens are being forced to produce ID as a consequence of the Clown-Kings ongoing mass deportation.
    http://www.nbcnewyork.com/news/local/Passengers-Demand-Answers-After-Unnerving-Customs-Check-at-John-F-Kennedy-Airport-414638133.html
    In addition the Mango Mussolini leaned on the FBI to dispute the stories of his ties to the Homeland.
    https://apnews.com/947a3d6577e34e87920381f4914e20d3
    Welcome to your country, the newest banana republic.

    Like or Dislike: Thumb up 2 Thumb down 0

  40. Jack says:

    @Daryl’s other brother Darryl: Let me put in in a context you understand.
    Wat b sad is u be stoopid. U b 2 stoopid 2 b on da innernet. Stik 2 playin wit ur sef.

    Like or Dislike: Thumb up 1 Thumb down 4

  41. KM says:

    @Jack:

    A people with guns are citizens. A people without guns are subjects.

    Weapons. A people without weapons are subjects because there were most certainly uprisings and free peoples before the gun. The sword was just as effective back in the day.

    The problem you have Jack is that concept makes every gun a weapon of war. After all, if one is fighting to not be a subject, one is waging war for one’s freedom, no? It’s why people want AR-15 knockoffs in the first place – because a smaller handgun (perfectly functional and sane for self-defense) is useless against a larger crowd. If you need more then a few shots, you’re not defending yourself, you’re in a fight. What do you colloquially call a place that has a lot of gunfights? A warzone.

    Self-defense is a laudable goal and I’m pro-gun in those terms. I think gun ownership in this country should be viewed through that lens. However, when you start making nebulous “we need an armed population because guberment” claims, you are essentially claiming you need these kinds of weapons to wage a potential war and thus validate the courts’ findings. Your own ideology and terminology is self-defeating.

    Like or Dislike: Thumb up 1 Thumb down 0

  42. DrDaveT says:

    @Jack:

    According to the 4th circuit, because the military uses it, it is “most useful in military service”.

    Since no service uses, or ever used, the AR, it is not a weapon “most useful in military service”.

    Wow. You really don’t understand either necessary conditions or sufficient conditions. I’m waiting for you to conclude, like the Woody Allen character, that “all men are Socrates”.

    I blame our educational system.

    Like or Dislike: Thumb up 2 Thumb down 0

  43. Daryl's other brother Darryl says:

    @Jack:
    hehehe…your dear leader apparently has the same self-esteem issue you have…
    http://www.reuters.com/article/us-usa-trump-exclusive-idUSKBN1622IF

    Like or Dislike: Thumb up 0 Thumb down 0

  44. Jack says:

    @KM:

    If you need more then a few shots, you’re not defending yourself, you’re in a fight. What do you colloquially call a place that has a lot of gunfights? A warzone.

    In fact, 15 minutes on Google will turn up a plethora of home invasions, robberies, and assaults involving multiple assailants—would you want to face two, three, or even more violent criminals with only 10 rounds?

    This isn’t a video game. This is real life and it rarely goes according to plan.

    http://concealednation.org/2015/12/ccw-in-action-houston-concealed-carriers-unload-on-armed-muggers-why-we-travel-in-packs/

    This guy put 2 rounds into one attacker and 7 rounds into another while emptying his magazine and the 2nd guy still got away.

    In Micanopy, Florida, shootout between gun shop owner Harry Beckwith and a gang of armed robbers at his store. Using an AR-15, Beckwith had fired 105 shots by the time the last of the gang had either died or fled. A grand jury ruled his shooting totally justifiable.

    http://nation.foxnews.com/crime/2013/01/10/15-year-old-defends-home-against-burglars-shoots-one-them-fathers-ar-15

    I guess this kid should have just let the burglars in since all he had was a weapon of war.

    If, as the anti-gun crowd claim, a few more bullets won’t increase my safety, then it’s only logical that a few more bullets won’t increase their danger either.

    Like or Dislike: Thumb up 0 Thumb down 0

  45. Jack says:

    @Daryl’s other brother Darryl: You are the sperm that won?

    Like or Dislike: Thumb up 0 Thumb down 0

  46. KM says:

    @Jack:
    Yes, Jack. All those people got into fights. I swear to god, something happens to the logic centers of people went they start defending guns. You start playing with the definitions of words to try and makes some imaginary point. You even used the word shootout – is a shootout not a fight in your world??

    My point (and the courts) still stands. If you are talking about taking on multiple assailants, hundreds of rounds, and shootouts, you have left the realm of simple self-defense and are entering a world most civilians will never go. I’m not saying its justified or not but you’d get a lot farther in your arguments if you just admitted these are tools designed to fight larger groups like you would in a war. There’s nothing wrong with being able to address multiple assailants but stop trying to complain the courts called a spade a spade.

    Like or Dislike: Thumb up 0 Thumb down 0

  47. Franklin says:

    @Jack: Instantly resorting to swearing and name-calling. That shows some character.

    As for your actual argument, then you are saying the 2nd amendment applies to nuclear weapons, too? Which are, in fact, arms. Sorry, but we’re going to have to agree to disagree.

    Like or Dislike: Thumb up 0 Thumb down 0

  48. Jack says:

    @Franklin: @Franklin: Extract from Heller:

    Justice Ginsburg wrote that “[s]urely a most familiar meaning is, as the Constitution’s Second Amendment … indicate[s]: ‘wear, bear, or carry … upon the person or in the clothing or in a pocket, for the purpose … of being armed and ready for offensive or defensive action in a case of conflict with another person.’ ” Id., at 143 (dissenting opinion) (quoting Black’s Law Dictionary 214 (6th ed. 1998)). We think that Justice Ginsburg accurately captured the natural meaning of “bear arms.”

    Nuclear arms are not used “in case of conflict with another person”.

    Like or Dislike: Thumb up 1 Thumb down 0

  49. wr says:

    @Jack: ” According to the 4th circuit, because the military uses it, it is “most useful in military service”.”

    Hi, I’m Jack. I have no idea what words mean, or how those meanings can be altered when the words are juxtaposed with other words. But I have a made-up black or Hispanic girlfriend, so that means everything I say is right.

    Like or Dislike: Thumb up 0 Thumb down 1

  50. Jack says:

    @wr: Awwww, Cupcake, aren’t you cute. If you so heartily disagree you should have just shaken your head, and moved on….instead of compulsively vomiting stupidity all over the internet. No one cares what you think, and I certainly didn’t instruct you to whine like a little b1tch.

    Like or Dislike: Thumb up 0 Thumb down 0

  51. teve tory says:

    Self-defense is a laudable goal and I’m pro-gun in those terms. I think gun ownership in this country should be viewed through that lens. However, when you start making nebulous “we need an armed population because guberment” claims, you are essentially claiming you need these kinds of weapons to wage a potential war and thus validate the courts’ findings. Your own ideology and terminology is self-defeating.

    Yep. And ask the Whiskey Rebellion how well their guns worked against the Evil Gummint. Or Randy Weaver. Or the Bundy fellows. Or the Branch Davidians.

    Thinking you’re going to use your pea-shooter as protection against The Gummint just means you’re dumb.

    Like or Dislike: Thumb up 3 Thumb down 0

  52. R. Dave says:

    @Pch101 Wrote: “Scalia wanted to legalize handguns without legalizing machine guns, RPGs and the like. Hence, this half-assed decision that invented a theory of self-defense out of whole cloth so that this arbitrary line could be drawn….The purpose of the Second Amendment was to address the Constitution’s federalization of the militia….Notes on the 1st Congress’ debate make it pretty obvious that the representatives knew that they were debating an amendment that was addressing service in the militia

    Well, personally, I do subscribe to the individual right interpretation, and I think there’s a reasonable case to be made either way based on contemporaneous sources and issues of concern. That aside, though, my core point is really just that Scalia could have achieved the same result – allowing handguns but not machine guns and RPGs – using traditional intermediate and strict scrutiny tests rather than inventing Constitutional categories of weaponry. It’s easy enough to argue that even if the 2nd Amendment establishes a right to keep and bear any and all types of weaponry, the more lethal a particular type of weapon is, the more compelling the government’s interest in preventing its misuse will become, and thus the more restrictive the government’s means of achieving that interest can be.

    Like or Dislike: Thumb up 1 Thumb down 0

  53. teve tory says:

    The whole thing’s a scam anyway.

    1) Gun companies think Instead of $150 shotguns, how can we move some pricier product?
    2) gun companies to NRA: Can you scare these morons into thinking they need $1500 military rifles? We make lots of attachments we can upsell, too.
    3) NRA: IDK, got any money?
    4) Gun companies: sure, here’s several million dollars a year.
    5) NRA: Hey everyone! OMG teh gummint’s coming to take your guns! bill clinton’s gonna take your guns! waco! ruby ridge! The UN gun grabbing globalists!!!!!!!1111
    6) Dumb Yokels: OMG here’s thousands of dollars for military hardware I don’t need but makes me feel manly!
    7) NRA: You should buy extra ones, too, and bury them, so they don’t get confiscated!
    8) dumb yokels: great idea! Here’s even more money.
    9) Gun companies: Hmm. I wonder if I should get that new rolex, or save up for that new mercedes e-class….decisions, decisions….

    Like or Dislike: Thumb up 3 Thumb down 1

  54. Franklin says:

    @Jack: OK, fair enough. But is it intentional that ‘person’ is in the singular form?

    My point being, a familiar meaning to the Framers wouldn’t envision something that can mow down tens of people quickly.

    Like or Dislike: Thumb up 0 Thumb down 0

  55. Jack says:

    @KM: The 4th Circuit held that weapons that are “most useful in military service” are simply categorically unprotected. Because almost all modern firearms have a military pedigree, this interpretation would allow nearly any firearm to be banned.

    What part of that statement don’t you understand?

    Like or Dislike: Thumb up 0 Thumb down 2

  56. KM says:

    @teve tory :

    6) Dumb Yokels: OMG here’s thousands of dollars for military hardware I don’t need but makes me feel manly!

    This is actually a point that doesn’t get made often. You hear about people complaining folks have cellphones and are on welfare but nobody says boo to the guy buying his 5th rifle with an EBT card in his pocket. What right do you have to waste money like that while your kids are hungry, your mortgage is behind and your hand is out for taxpayer goodies?

    Tell you what conservatives, we’ll give you drug and means testing for welfare recipients if you concede they must not own any firearms while on government assistance (pass for hunters who actually hunt for food as a major part of their diet). They can put the property into a trust for free and have it returned upon leaving the program as so to preserve their ownership and 2nd Amendment rights. Sound good?

    Like or Dislike: Thumb up 0 Thumb down 0

  57. Pch101 says:

    @R. Dave:

    It’s easy enough to argue that even if the 2nd Amendment establishes a right to keep and bear any and all types of weaponry, the more lethal a particular type of weapon is, the more compelling the government’s interest in preventing its misuse will become, and thus the more restrictive the government’s means of achieving that interest can be.

    If one is to rely upon the original Militia Act to determine what weapons should be allowed under a conservative interpretation of the Second Amendment, then one could take either a literal interpretation (only bayonets, single shot handguns and muzzle-loaded long guns are protected) or else a more figurative one (all small arms that could be used in combat.)

    If you take the former position, then a handgun or rifle with a large clip can be regulated out of existence. If you take the latter, then there is no reason why one shouldn’t be able to have a fully automatic rifle, RPG, etc..

    Two-thirds of gun homicides in the US involve handguns, yet handguns are less useful in a combat situation than a rifle. The self-defense argument in Heller was an attempt to thread this ridiculous needle.

    Heller is awkward because it is necessarily a bad ruling, as there was no other way to allow handguns while restricting military weapons under an amendment that was oriented around militia service. If the likelihood of killing innocent people is to serve as some sort of litmus test, then it should pretty obvious that concealment is a key factor in what makes a weapon dangerous to the public.

    Like or Dislike: Thumb up 0 Thumb down 0

  58. Jack says:

    PROPOSED EXECUTIVE ORDER DESIGNATES MILITIA RIFLES FOR CITIZEN OWNERSHIP

    EXECUTIVE ORDER

    – – – – – – –

    DESIGNATION OF MILITIA RIFLES

    By the authority vested in me as President and Commander in Chief of the Militia by the Constitution and the laws of the United States of America, and in order to ensure the ability of citizens of the United States to defend themselves, their communities and their States, as well as to ensure the safety and security of our Nation, I hereby order as follows:

    Section 1. Purpose. Both individual and community safety are critically important to the national security of the United States. Terrorism, transnational criminal activity and potential acts of war by foreign nations present a significant threat to national security and our citizens, who have the right and the duty to defend themselves, their communities, their States and the Nation.

    Section 2. Policy. It is the policy of the executive branch to:

    (a) Support and defend the Constitution, including the Second Amendment right of citizens to keep and bear arms for Militia purposes, as well as self-defense.

    (b) Encourage citizens to be prepared to act as members of the Militia to defend communities, States and the Nation, as part of the common defense contemplated by the Constitution of the United States.

    (c) Discourage restrictions by States and political subdivisions on individual possession of firearms suitable for Militia purposes by citizens of the United States.

    Section 3. Definitions.

    (a) “Militia” has the meaning given the term in Title 10, Section 311 of the United States Code to include the Unorganized Militia, as well as the meaning given to the term “Militia” under equivalent State statutes.

    (b) “Self-Defense” shall mean the actions of citizens to defend themselves and their families from physical attack.

    (c) “Communities” shall mean neighborhoods, towns, cities, counties and other political subdivisions of citizens who live in distinct geographic areas within a State.

    (d) “State” shall mean one of the fifty States of the United States.

    (e) “Militia Purposes” shall mean training, practice and preparedness which could improve the ability of a citizen to act, and to be armed in case of a need to act, as a member of a local, State or National organization commanded by government officials and responsive to a physical threat. Appropriate organizations include those commanded by an elected county or city Sheriff; those commanded by the Governor of a State through officers of that State’s Defense Force as authorized by Title 30, Section 109 of the United States Code, or through officers of that State’s National Guard; and organizations commanded by the President through officers of the Active or Reserve components of U.S. Armed Forces.

    (f) “Militia Rifles” shall mean the firearms designated in Section 4 that are made in America and suitable for use in self-defense, community defense, defense of States and defense of the Nation.

    Section 4. Designation of Militia Rifles. That the following firearms and accessories are authorized and appropriate for individual citizens to keep and bear for Militia purposes under the Constitution and the laws of the United States:

    (a) The AR-15 and similar semi-automatic rifles, to include flash suppressors and bayonet lugs, magazines of up to thirty round capacities, M-7 bayonets, and ammunition in 5.56 NATO or .223 Remington, in all quantities.

    (b) The M1A and similar semi-automatic rifles, to include flash suppressors and bayonet lugs, magazines of up to twenty round capacities, M-6 bayonets, and ammunition in 7.62 NATO or .308 Winchester, in all quantities.

    (c) The M1 Garand and similar semi-automatic rifles, to include flash suppressors and bayonet lugs, M-5 bayonets, and ammunition in.30-’06 Springfield, in all quantities.

    (d) Bolt action rifles in the calibers of .30-’06 Springfield; 7.62 NATO or .308 Winchester; 5.56 NATO or .223 Remington; or any substantially equivalent caliber, and ammunition appropriate for the rifles, in any quantity.

    (This list could easily be expanded.)

    Section 5. Pre-emption. This Executive Order is intended to pre-empt the laws of States or political subdivisions that infringe upon the rights of citizens to keep and bear the arms designated in Section 4.

    Section 6. Judicial Notice. That the judges of all State and Federal Courts are hereby given notice that possession of the designated Militia Rifles and accessories by citizens should not be restricted or infringed upon by State laws or the laws of a political subdivision of a State and any such law should be reviewed under the strict scrutiny standard to determine whether it is a violation of the Constitution of the United States after judicial consideration of this Order and the fact that it was issued by the Commander in Chief of the Militia.

    Donald J. Trump

    THE WHITE HOUSE

    March __, 2017

    Don’t go away mad, just go away.

    Like or Dislike: Thumb up 1 Thumb down 2

  59. KM says:

    @Jack:

    What part of that statement don’t you understand?

    I understand it just fine because I have no problems admitting nearly any firearm out there today can be banned. Again, most people on the planet understand the linkage between guns and warfare – its only in America that we like to pretend there’s some meaningful distinction that lets us walk around with deadly machinery designed to kill multiple people in seconds for “defense”. People were defending their homes and persons long before these things hit the streets with limited ammunition and rate of fire. However did people survive having to keep count of their shots?! We are so spoiled for choice we stop to think just because we can doesn’t mean we should.

    The fact is if you need a gun, a basic handgun is all you will need. You’re not going to run into a bloodythristy mob, it’s most likely one guy mugging you and home invasions with multiple assailants are not as common as you think. This of it like this: a cellphone is for calls. You get a basic oldschool dumb phone and voila, calls! If you insist on having the internet, games, movies and more in your hand because you can, fine. Upgrade. But understand that upgrading to a smart phone means you’re holding a little computer that can make calls, not a phone with a ton of new toys attached. If you just need to make a call, don’t whine when someone hands you a dumb phone because its not sufficient. It’s your standards that are deficient, not the weapon.

    Like or Dislike: Thumb up 1 Thumb down 1

  60. KM says:

    @Jack:

    “Self-Defense” shall mean the actions of citizens to defend themselves and their families from physical attack.

    Well hell, there goes the “I feel threatened and feared for my life” crap you people loves so much. Physical attack, not the suggestion or threat of one. They really should have been more careful with that wording. Thanks Trump!

    Like or Dislike: Thumb up 2 Thumb down 1

  61. Jack says:

    @KM: Based upon the 4th circuits reasoning, even handguns are weapons that are “most useful in military service”. Where does it end?

    Besides, who are you to tell me what I need? I don’t see the word need in the 2nd amendment. A handgun is something I will use until I reach my rifle.

    Like or Dislike: Thumb up 1 Thumb down 2

  62. Jack says:

    @KM:

    “I feel threatened and feared for my life”

    I believe you are confusing us regular citizens with tin badge wearing cops.

    Like or Dislike: Thumb up 1 Thumb down 1

  63. R. Dave says:

    @Pch101 Wrote:: If one is to rely upon the original Militia Act to determine what weapons should be allowed under a conservative interpretation of the Second Amendment…

    Based on an admittedly quick skim of the Militia Acts of 1792, it seems like the reference to muskets, etc. is just a list of the kit members of the enrolled militia are expected to bring with them when they’re called up. It’s not clear to me why that should serve as a stand-in for the intended scope of the Second Amendment. In short, why would a statement that “this is the least that you must have in a particular context” be construed as a guide to the most that you may have in any context?

    Like or Dislike: Thumb up 0 Thumb down 0

  64. Pch101 says:

    @R. Dave:

    The Militia Act helps to define a reasonableness standard for weapons that are appropriate for members of the militia. And the right is fond of claiming that just about everyone belongs to the militia.

    Militia members of the late 18th century were not only allowed but required to own military-grade weapons as they were defined by the standards of the day. So if one is going to hang his hat on the argument that everyone was and is a member of the militia, then it would be reasonable to note that the federal government thought that it was perfectly reasonable to expect average citizens to keep military-grade weapons in their homes.

    It really doesn’t make any sense to claim that we are all members of the militia, yet that we cannot own the kinds of weapons that would do us the most good in combat. But since Scalia was looking for an excuse to legalize handguns while allowing restrictions on the kinds of weapons that are the most useful in waging war, we end up with the twisted logic that is Heller.

    Like or Dislike: Thumb up 1 Thumb down 0

  65. HarvardLaw92 says:

    Is it bad that I only tuned in to this channel in order to enjoy watching Jack lose his mind over this ruling?

    Like or Dislike: Thumb up 1 Thumb down 1

  66. Liberal Capitalist says:

    @HarvardLaw92:

    Ditto.

    At some point, I realized that Jack needs ALL the guns, because he wants all the guns.

    Logic doesn’t apply here, as Jack has been having this fevered argument for years.

    Besides, who are you to tell me what I need?

    Spoken like a true supervillain.

    Penguin, Joker, Dr. Doom Lex Luther & Jack

    I’d love to know where Jack lives, and if these gangs of robbers come though his neighborhood so often.

    I’m guessing no, but the DREAM of mowing down 10’s of people prolly makes him feel REAL good. ‘Cause in his head, he’s s superHERO !!!

    ———————-

    BTW, I have a High Capacity AR-15 magazine. I don’t have an AR-15.

    Why? Because Colorado was outlawing high capacity magazine sales, so a conservative friend went out and bought a boxload.

    Didn’t need them… had no use for them… but he did it and passed them out talking about how vile the government was to propose that they would not sell them.

    So it sits, a cheap piece of plastic, with a spring that pushes bullets up. A reminder of how a manufactured shortage can get people to buy absolutely unnecessary things.

    And from what I hear, high capacity magazines tend to jam, because they are built cheap, with a crappy spring.

    So, with the 4th Circuit court decision, look forward to an upswing in sales, which is GREAT for the gun manufacturers because sales had dropped way off since the black guy is no longer president.

    Gotta deliver that shareholder value.

    Like or Dislike: Thumb up 0 Thumb down 1

  67. wr says:

    @Liberal Capitalist: “Spoken like a true supervillain.”

    Seriously? You read that and see supervillain? I see toddler. “You’re not the boss of me!! Waaah!”

    Like or Dislike: Thumb up 0 Thumb down 0

  68. Liberal Capitalist says:

    @wr:

    @Liberal Capitalist: “Spoken like a true supervillain.”

    Seriously? You read that and see supervillain? I see toddler. “You’re not the boss of me!! Waaah!”

    That, or a GOP sitting President.

    :)

    Like or Dislike: Thumb up 0 Thumb down 1