Fake Law


Todd Woodard

Later in this issue, Roger Eckstine compares three pretty dang good AR-15s that folks in many parts of the country can afford and enjoy — except, most recently, in Maryland. Reason: The Fourth Circuit Court of Appeals, based in Richmond, Virginia basically rewrote Heller and upheld Maryland’s “assault weapons” ban, trampling on American Constitutional rights in the areas of the court’s jurisdiction. In a decision issued February 21, the court upheld Maryland’s ban on both “assault weapons” and “high capacity magazines.”

The Kolbe v. Hogan decision is so wrong in so many ways, I can only characterize it by purloining descriptions of the media coverage of Donald Trump — fake news — and using it in the context of the decision: It is fake law. Fortunately, you don’t have to take my word for it. One of the jurists writing in dissent, Judge William B. Traxler Jr., does it far better than I could ever do.

In his dissent, Judge Traxler says the majority contrived “a heretofore unknown ‘test,’ which is whether the firearm in question is ‘most useful in military service.'” Such a “test” allows judges to find that any firearm they don’t favor isn’t protected by the Second Amendment, and can therefore be prohibited on a whim.

“Under the majority’s analysis,” the dissenters wrote, “a settler’s musket, the only weapon he would likely own and bring to militia service, would be most useful in military service — undoubtedly a weapon of war — and therefore not protected by the Second Amendment.” Indeed, the dissent goes on, “the ‘most useful in military service’ rubric would remove nearly all firearms from Second Amendment protection as nearly all firearms can be useful in military service.” Using this standard, the Fourth Circuit could strip the Constitutional protection from nearly any weapon it chooses to. In dismissing the majority’s test, the dissenters pointed out that “Heller in no way suggests that the military usefulness of a weapon disqualifies it from Second Amendment protection. That is the majority’s singular concoction.”

Judge Traxler continues, writing that the decision avoids the “unavoidable conclusion that popular semiautomatic rifles such as the AR-15 are commonly possessed by American citizens for lawful purposes within the meaning of Heller.” Also, he said, the record “shows unequivocally that magazines with a capacity of greater than 10 rounds are commonly kept by American citizens, as there are more than 75 million such magazines owned by them in the United States.”

More ridiculous still is the majority’s description of the AR-15 as “weapon of war.” My reading of the opinion suggests that because the AR looks like an M-16, the semi-auto variant of the select-fire battle rifle counts as a military firearm. Semi-automatic rifles, Judge King opines, can fire at a rate of between 300 and 500 rounds per minute. Unbelievable.

Conclusion: Traxler writes, “If the majority is correct, that the semiautomatic AR-15’s rate of fire makes it a weapon of war outside the scope of the Second Amendment, then all semiautomatic firearms — including the vast majority of semiautomatic handguns — enjoy no constitutional protection since the rate of fire for any semiautomatic firearm is determined by how fast the shooter can squeeze the trigger.”

Hopefully, the Supreme Court, which has been unwilling to take many Second Amendment cases, will stop treating the keeping and bearing of arms as a second-class right and overturn the decision in this case.


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