Before I explain how and why this decision violates the aforementioned SCOTUS rulings, I would like to point out that even the ACLU is becoming alarmed about the rush by many on the left to attack gun rights. Indeed, they recently warned against the placement of 8 million Social Security recipients on the nation's gun ban list without due process of law - siding with the Republican Congress and Process Donald Trump in the process. Even if you hate guns, you should be concerned about the precedent that is set when constitutional rights are ignored by courts in order to promote what they believe to be the "greater good". Next time it may be a right that you hold dear that is effectively repealed by an unelected court. The danger is that we are becoming a nation of men, and not of laws. This is why the ACLU is becoming concerned.
So, why is the decision so bad? To understand that, you have to understand the original intent of the 2nd Amendment and the three SCOTUS decisions that address the issue: Miller (1939), Heller (2008) and McDonald (2010). The 4th Circuit contends that there is no 2nd Amendment right to own "weapons of war" - the reality is that all of the above mentioned decisions REQUIRE that firearms be "weapons of war" in order to be protected. Yes, you read that right - there is no right to own a firearm that has no military value.
First, let's consider original intent. There is no doubt about what rights the founders wished to protect. In short, they wanted to protect the right of the people to own personal small arms of the kind used by individual soldiers - for personal use, personal defense and the defense of the state. They could have limited this right to members of the militia (who in those days were required to provide their own weapons) - but they quite deliberately chose not to do so. However, the "militia purpose" aspect of the 2nd Amendment is very important to the definition of what kind of firearms are and are not protected. From the very beginning of the 2nd Amendment, it has been intended to protect firearms that have military value. That is why one of the dissenting opinions in the Heller decision contended that there was no right to own a handgun (because they wrongly reasoned it had no military value) but there likely is a right to own an M16! (BTW, there is no right to own crew served weapons such as machine guns and cannons because they are not personal weapons and were provided to militia units by the states.)
Next let's consider the Miller (1939) decision. This was the first time that the Supreme Court addressed the personal right to own firearms under the 2nd Amendment. In 1934, Congress passed the 1934 National Firearms Act (NFA). Among other things, the law regulated short barreled (sawed off) shotguns. The case involved a man who crossed state lines with an unregistered sawed off shotgun. The man - who was a convicted felon - appealed to SCOTUS on 2nd Amendment grounds. The high court held that sawed off shotguns were not protected because they are not weapons of war. In fact, they said that any firearm without value as a militia weapon, is not protected by the 2nd Amendment. The last time I checked, the purpose of a militia is to fight in wars - so requiring militia value is exactly the same thing as requiring a firearm to be a "weapon of war".
Finally, let's look at the Heller (2008) decision, which was expanded to cover the states and called "essential to our system of ordered liberty" in the McDonald (2010) decision. The legal issue in this case was Washington DC's ban of all handguns. The federal government, arguing on behalf of Washington DC, held that a ban of handguns was permissible under the 2nd Amendment because handguns are especially dangerous. They cited the fact that handguns account for the majority of homicides. If a category of firearms is to be banned because it is dangerous, it would be handguns.
The high court struck down Washington DC's handgun ban as being in violation of the 2nd Amendment. In the ruling, SCOTUS established the following tests to determine if a firearm is protected:
1) They reaffirmed Miller's "militia purpose" test. However, they found that handguns do have a militia purpose.
2) They added a "common use" test. Under this test, government may not ban any firearm that is commonly used by civilians.
3) Finally, SCOTUS established a two fold test to determine if a firearm may be banned. In order to be forbidden, a firearm must be BOTH unusual and dangerous. Obviously, all firearms are dangerous, so this alone cannot be used to justify a ban of any firearm.
Now that you know what rules have been established by the Supreme Court, let's apply them to the issue of semi-automatic modern rifles, falsely called "assault weapons":
First, lets consider the militia value test. Everyone agrees that rifles like the AR15 pass this test. After all, the complaint of those who want them banned is that they are weapons of war.
Second, let's consider the "common use" test. The most popular firearm in the United States is the AR15. If the AR15 and other modern semi-automatic firearms do not pass the common use test, no firearms do. The 4th Circuit completely ignored and subverted the common use test.
Third, let's consider the "dangerous and unusual" test.
Clearly, semi-automatic rifles are dangerous, just like any other firearm, but are the especially dangerous? Are they more dangerous than handguns, which SCOTUS refused to allow both Washington DC and Chicago to ban? Let's consider the evidence.
Looking at 2015 FBI statistics, it is quite clear that rifles are infrequently used in homicides:
Finally, let's look at the Heller (2008) decision, which was expanded to cover the states and called "essential to our system of ordered liberty" in the McDonald (2010) decision. The legal issue in this case was Washington DC's ban of all handguns. The federal government, arguing on behalf of Washington DC, held that a ban of handguns was permissible under the 2nd Amendment because handguns are especially dangerous. They cited the fact that handguns account for the majority of homicides. If a category of firearms is to be banned because it is dangerous, it would be handguns.
The high court struck down Washington DC's handgun ban as being in violation of the 2nd Amendment. In the ruling, SCOTUS established the following tests to determine if a firearm is protected:
1) They reaffirmed Miller's "militia purpose" test. However, they found that handguns do have a militia purpose.
2) They added a "common use" test. Under this test, government may not ban any firearm that is commonly used by civilians.
3) Finally, SCOTUS established a two fold test to determine if a firearm may be banned. In order to be forbidden, a firearm must be BOTH unusual and dangerous. Obviously, all firearms are dangerous, so this alone cannot be used to justify a ban of any firearm.
Now that you know what rules have been established by the Supreme Court, let's apply them to the issue of semi-automatic modern rifles, falsely called "assault weapons":
First, lets consider the militia value test. Everyone agrees that rifles like the AR15 pass this test. After all, the complaint of those who want them banned is that they are weapons of war.
Second, let's consider the "common use" test. The most popular firearm in the United States is the AR15. If the AR15 and other modern semi-automatic firearms do not pass the common use test, no firearms do. The 4th Circuit completely ignored and subverted the common use test.
Third, let's consider the "dangerous and unusual" test.
Clearly, semi-automatic rifles are dangerous, just like any other firearm, but are the especially dangerous? Are they more dangerous than handguns, which SCOTUS refused to allow both Washington DC and Chicago to ban? Let's consider the evidence.
Looking at 2015 FBI statistics, it is quite clear that rifles are infrequently used in homicides:
Handguns are by far the most common homicide weapon (6447), followed by firearm (type not stated) which are likely nearly all handguns (2477), followed by a multitude of other non-firearms weapons and then all rifles (252) (not just semi-auto rifles - that number would be even smaller) and shotguns (269). The fact is that long guns are seldom used in crimes. Even mass shootings are usually committed with semi-automatic handguns. Those mass shootings where they are used could be just as easily committed with handguns - which cannot be banned. The 4th Circuit could only allow a semi-auto rifle ban by completely ignoring the precedent in Heller.
So, modern semi-auto rifles are much less dangerous to society than handguns - but are they in common use? After all, if they are not in common use, as handguns are, then a ban might be constitutional. Consider the graphic below, and note the brown line. It represents the number of AR15 type rifles (only one of many types of rifles covered by the ban) sold since the year 2000.
First, note that the number of AR15s sold since the year 2000 is 5.5 Million. Indeed, it is the most popular firearm type in America. How can the most popular firearm in America be "uncommon"? Obviously, it can't. As a common firearm with military value, it cannot be banned - unless you completely ignore SCOTUS decisions, which is what the 4th Circuit did.
So, modern semi-auto rifles are much less dangerous to society than handguns - but are they in common use? After all, if they are not in common use, as handguns are, then a ban might be constitutional. Consider the graphic below, and note the brown line. It represents the number of AR15 type rifles (only one of many types of rifles covered by the ban) sold since the year 2000.
First, note that the number of AR15s sold since the year 2000 is 5.5 Million. Indeed, it is the most popular firearm type in America. How can the most popular firearm in America be "uncommon"? Obviously, it can't. As a common firearm with military value, it cannot be banned - unless you completely ignore SCOTUS decisions, which is what the 4th Circuit did.
Second, note that the graphic shows that as the number of AR15s in circulation has vastly increased, the percentage of homicides committed with rifles has actually decreased. This is the final nail in the "especially dangerous" argument.
The bottom line is simple: The 4th Circuit court of appeals issued a ruling that completely ignores the rule of law. This decision should be reviewed by SCOTUS and reversed. Should that fail to happen, Congress should act to protect the right of all Americans.
The bottom line is simple: The 4th Circuit court of appeals issued a ruling that completely ignores the rule of law. This decision should be reviewed by SCOTUS and reversed. Should that fail to happen, Congress should act to protect the right of all Americans.
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