Today, the Fourth Circuit Court of Appeals, sitting en banc (with the "full court"), issued a terrible new decision that overturned an important pro-Second Amendment decision issued by a previous 3-judge panel -- and placed Second Amendment rights in grave danger.
On February 4, 2016, the 4th Circuit panel issued its decision, holding (among other things) that firearm regulations that restrict so-called "assault weapons" should be subjected to a tougher judicial review standard called "strict scrutiny".
This was a breakthrough decision in that most courts, ignoring the Supreme Court decisions of D.C. v. Heller and McDonald v. Chicago, applied an "interest-balancing" approach similar to that promoted by Justice Breyer -- and ultimately (and expressly) rejected by the Heller majority, penned by the late Justice Antonin Scalia.
But the Fourth Circuit, apparently not willing to allow a pro-gun decision to stand (and taking a page from the Ninth Circuit), ordered the case to be re-heard before the full court -- where a decision is generally binding unless it is overturned by the U.S. Supreme Court.
On the morning of December 14, 2012, in Newtown, Connecticut, a gunman used an AR-15-type Bushmaster rifle and detachable thirty-round magazines to murder twenty first-graders and six adults in the Sandy Hook Elementary School. Two additional adults were injured by gunfire, and just twelve children in the two targeted classrooms were not shot. Nine terrified children ran from one of the classrooms when the gunman paused to reload, while two youngsters successfully hid in a restroom. Another child was the other classroom’s sole survivor. In all, the gunman fired at least 155 rounds of ammunition within five minutes, shooting each of his victims multiple times.
As explained below, we are satisfied to affirm the district court’s judgment, in large part adopting the Opinion’s cogent reasoning as to why the FSA contravenes neither the Second Amendment nor the Fourteenth. We diverge from the district court on one notable point: 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.
Put more simply, this Court -- like too many others -- have employed a "heads I win, tails you lose" approach to deciding Second Amendment cases.
In addition, the majority holds that even if it is wrong when it says that the Second Amendment does not cover these commonplace rifles, Maryland can still lawfully forbid their purchase, even for self defense in one’s home-the core Second Amendment right. My friends do not believe this ruling impairs the rights citizens have under the Constitution to any significant degree. In my view, the burden imposed by the Maryland law is considerable and requires the application of strict scrutiny, as is customary when core values guaranteed by the Constitution are substantially affected. I recognize that after such a judicial review, the result could be that the Maryland law is constitutional. I make no predictions on that issue. I simply say that we are obligated by Supreme Court precedent and our own to treat incursions into our Second Amendment rights the same as we would restrictions on any other right guaranteed us by our Constitution.
We believe that the Second Amendment means what it says -- and we all need to stand together and take decisive action to protect liberty RIGHT NOW before anti-gun activist judges kill off our rights through rulings like this one.
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