Thursday, March 23, 2017

Why the 4th Circuit court of appeals is dead wrong on the 2nd Amendment

Excerpt from 4th Circuit Court of Appeal's decision below, link for full text: 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 amonth 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.

 And the Heller decision that they are referencing, link for full text: The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home.

Now, notwithstanding the fact that it is fairly easy to argue the Heller decision probably did not intend to limit the 2nd Amendment's application to ONLY firearms unconnected with service in a militia, as the 4th Circuit is now trying to construe, I think we should take a little trip down memory lane to 1939 when the Supreme Court spoke on a landmark challenge to gun control laws, on a day before many of us were born, and made fairly clear their interpretation of the 2nd Amendment at that time.

United States v. Miller, 1939, link for full text: Excerpt from decision:

The Court cannot take judicial notice that a shotgun having a barrel less than 18 inches long has today any reasonable relation to the preservation or efficiency of a well regulated militia, and therefore cannot say that the Second Amendment guarantees to the citizen the right to keep and bear such a weapon.

The above decision was handed down upon challenge to the National Firearms Act of 1934. Two suspected moonshiners (no contraband liquor discovered at time of arrest) were arrested and charged with having violated this act because one of them possessed a shotgun with a barrel of less than 18 inches not having paid the tax stamp for such a weapon. A lower court held that the NFA was in fact a violation of their constitutional rights and it was later appealed to the Supreme Court. As one can see, AT THAT TIME, the Supreme Court ruled fairly conclusively that the NFA was not an infringement BECAUSE it applied to a firearm not associated with a militia (even though, historically, short barrel shotguns had in fact been issued to and used by the US Army in WW1, a fact the Supreme Court justices in their infinite wisdom apparently overlooked.) So, in almost 80 years we have two separate opinions stating that the 2nd Amendment DOES and simultaneously DOES NOT apply to weapons issued to and used by the US military and the militia.

Which is it? This is why I earlier said, and continue to say, the 4th Circuit has stepped on a legal landmine. The courts are cherry picking which decision they wish to apply to satisfy their brand of judicial activism rather than following the plain text of the 2nd Amendment, and what I have laid out above should point to that blatant hypocrisy.

So, which is it? Shall we shred the NFA and let everyone have their short barrel shotguns and rifles and suppressors, or shall we agree that "military style weapons" are in fact protected under the 2nd Amendment? Which is it everyone? - Phil Rabalais



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