Supreme Court's next big gun control case? Kolbe v. Hogan

[Aim1]

This could be a good one to take to SCOTUS. Has a good plaintiff too, disabled Navy veteran who needs a semi-automatic for self-defense.

From the ruling:

When Maryland appealed the decision to the full appeals court, a 10-4 majority determined, “[W]e have no power to extend Second Amendment protection to the weapons of war that the Heller decision explicitly excluded from such coverage.”



Supreme Court's next big gun control case? Post-Newtown laws face new scrutiny

Supreme Court's next big gun control case? Post-Newtown laws face new scrutiny


FoxNews.com

Published August 4, 2017

Maryland’s law was upheld in federal district court. Then a three-judge panel of the 4th Circuit Court of Appeals in Richmond ruled 2-1 the law wasn’t constitutional.

When Maryland appealed the decision to the full appeals court, a 10-4 majority determined, “[W]e have no power to extend Second Amendment protection to the weapons of war that the Heller decision explicitly excluded from such coverage.”

 

[sequins]

We need a court, preferably the supreme court, to affirm that the 2nd amendment explicitly refers to weapons of war. The purpose of the 2nd amendment is to enable regular people to challenge the federal government militarily and prevent state monopoly on force.

Some would like to challenge that premise. In recent years the various agendas favoring state power and a reduction in individual rights have been ascendant. I hope that is changing.

In the end if there is no punishment for ignoring central directives (like heller) then why should they be obeyed? The government has not been as affirmative as I would like and the states disregard orders they dislike, with no punishment.

 

[pdsmith505]

We need a court, preferably the supreme court, to affirm that the 2nd amendment explicitly refers to weapons of war. The purpose of the 2nd amendment is to enable regular people to challenge the federal government militarily and prevent state monopoly on force.

Some would like to challenge that premise. In recent years the various agendas favoring state power and a reduction in individual rights have been ascendant. I hope that is changing.

In the end if there is no punishment for ignoring central directives (like heller) then why should they be obeyed? The government has not been as affirmative as I would like and the states disregard orders they dislike, with no punishment.

You mean like US v. Miller? Who knows what would have happened if he had shown up to defend himself instead of being found dead before the judgement was issued...

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.

In the absence of any evidence tending to show that possession or use of a "shotgun having a barrel of less than eighteen inches in length" at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment, or that its use could contribute to the common defense.

 

[Jim Watson]

What kind of semiautomatic "weapon of war" did he want?
Maybe one like the civilian police guarding the courthouse carry?

 

[AlexanderA]

This is exactly why the Heller decision was not as gun-friendly as it appeared to be at first glance. Scalia left the door wide open for the banning of any "militia" type weapons. Heller stood the 2nd Amendment on its head, because "weapons of war" were exactly what the Amendment was about. The Supreme Court needs to revisit Heller, and sooner or later I believe it will.

 

[natman]

We need a court, preferably the supreme court, to affirm that the 2nd amendment explicitly refers to weapons of war. The purpose of the 2nd amendment is to enable regular people to challenge the federal government militarily and prevent state monopoly on force.

Some would like to challenge that premise. In recent years the various agendas favoring state power and a reduction in individual rights have been ascendant. I hope that is changing.

In the end if there is no punishment for ignoring central directives (like heller) then why should they be obeyed? The government has not been as affirmative as I would like and the states disregard orders they dislike, with no punishment.

SCOTUS has already affirmed the meaning of the word "arms". The lower court has seen fit to ignore it. First let's take a look at the "logic" used in the Maryland case.

From the 4th's decision:

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”).

Here's what Heller actually says:

It may be objected that if weapons that are most useful in military service—M-16 rifles and the like—may 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 to militia duty.

Note that the first sentence presents a hypothetical objection and the second sentence refutes it. The 4th has seen fit to take selected words from the first sentence completely out of context and twist them 180 degrees from Heller's actual position on the definition of the meaning of the word "arms":

“Before addressing the verbs “keep” and “bear,” we interpret their object: “Arms.” The 18th-century meaning is no different from the meaning today. The 1773 edition of Samuel Johnson’s dictionary defined “arms” as “weapons of offence, or armour of defence.”

“Although one founding-era thesaurus limited “arms” (as opposed to “weapons”) to “instruments of offence generally made use of in war,” even that source stated that all firearms constituted “arms.”

“Some have made the argument, bordering on the frivolous, that only those arms in existence in the 18th century are protected by the Second Amendment. We do not interpret constitutional rights that way. Just as the First Amendment protects modern forms of communications,…and the Fourth Amendment applies to modern forms of search, …the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding.

DC v Heller, pages 7-8

At the very least, when SCOTUS gets this case, they should send it back for reconsideration without even hearing the case via a per curiam opinion, just as they did when the Massachusetts Supreme Court tried to use the "only muzzleloaders" argument in Caetano v. Massachusetts (2015). No matter how an individual Supreme Court justice may feel about the issue at hand, they simply can't allow lower courts to dump on Supreme Court decisions like this. Not if the word "Supreme" is going to mean anything.

 

[CoalTrain49]

And if it does get to the SC they will just rule that someone with a disability can have a semi-auto weapon.

People with those disabled parking permits will be luck. The rest of us will just have to be satisfied with the restrictions in place.

This isn't a 2A issue, it's about the rights of a disabled person.

 

[jrmiddleton425]

And if it does get to the SC they will just rule that someone with a disability can have a semi-auto weapon.

People with those disabled parking permits will be luck.

We tried that in New York...*I* was NY SCOPE's token "disabled person."

Long story short...we got back the ability to load ten rounds in a ten-round magazine. Otherwise the court gave NYS almost exactly what it wanted. The U.S. Court of Appeals for the 2nd Circuit ruled that for Heller to be applied to the SAFE Act, it would have to ban ALL semi-automatic rifles and handguns, which it doesn't; and neither does Maryland's law.

If all this guy has to go to court with is, "I'd rather use an AR-15, than a Mini-14," he doesn't have a leg to stand on.

 

[John_R]

A single-shot musket was a weapon of war when the 2A was written. This'll be fun!

 

[AlexanderA]

Here's what Heller actually says:

"It may be objected that if weapons that are most useful in military service—M-16 rifles and the like—may 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 to militia duty."

Note that the first sentence presents a hypothetical objection and the second sentence refutes it.

But Scalia did detach the operative portion of the 2nd Amendment completely from the prefatory clause. So I don't understand what he was trying to say in the above quote. His opinion in Heller was a complete mishmash, and certainly not his best work. Perhaps he was walking a tightrope, upholding gun rights -- but not too much -- so as to get 5 Justices to go along with the result. (It almost seems as though Scalia thought the militia would be armed with shotguns and other Fudd guns.)

 

[daverich4]

A single-shot musket was a weapon of war when the 2A was written. This'll be fun!

Only if you also believe that freedom of the press only applies to things printed one at a time on a manually operated press and not high speed presses, TV, radio and the internet.

 

[natman]

A single-shot musket was a weapon of war when the 2A was written. This'll be fun!

“Some have made the argument, bordering on the frivolous, that only those arms in existence in the 18th century are protected by the Second Amendment. We do not interpret constitutional rights that way. Just as the First Amendment protects modern forms of communications,…and the Fourth Amendment applies to modern forms of search, …the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding."

DC v Heller, pages 7-8 [emphasis added]

 

[RPZ]

The argument can be condensed down to the simple distinction between "sporting use" and for defense - be it personal or in militia service. There has not, to my knowledge, been any ruling by any higher court at State or Federal level that has asserted that the 2nd has anything whatsoever to do with "sporting purposes".

It is significant that the regulation of certain weapons, NFA items, took place years, in some cases decades, after their introduction. So it is clear that at their introduction, whether it was the short barreled shotgun, rifle, shoulder stocked pistols, or an M27 subgun no one was crying about any of them being reserved to military use only. Rather it took a concerted propaganda campaign followed by government initiated court challenge to place restrictions on them in the form of permission and a huge tax.

 

[natman]

But Scalia did detach the operative portion of the 2nd Amendment completely from the prefatory clause. So I don't understand what he was trying to say in the above quote. His opinion in Heller was a complete mishmash, and certainly not his best work.

I agree that he should have known better than to have posed a hypothetical question for rebuttal lest it be quoted out of context as it was by the 4th circuit. They also stretched the phrase "M16 rifles and the like" to mean anything that looks like an M16, conveniently ignoring the substantial legal difference between a fully automatic M16 and a semiautomatic AR-15.

Perhaps he was walking a tightrope, upholding gun rights -- but not too much -- so as to get 5 Justices to go along with the result. (It almost seems as though Scalia thought the militia would be armed with shotguns and other Fudd guns.)

I don't think he thought anything of the sort, considering the following Heller quotes in which the definition of "arms" is made quite clear:

“Before addressing the verbs “keep” and “bear,” we interpret their object: “Arms.” The 18th-century meaning is no different from the meaning today. The 1773 edition of Samuel Johnson’s dictionary defined “arms” as “weapons of offence, or armour of defence.”

“Although one founding-era thesaurus limited “arms” (as opposed to “weapons”) to “instruments of offence generally made use of in war,” even that source stated that all firearms constituted “arms.”

“Some have made the argument, bordering on the frivolous, that only those arms in existence in the 18th century are protected by the Second Amendment. We do not interpret constitutional rights that way. Just as the First Amendment protects modern forms of communications,…and the Fourth Amendment applies to modern forms of search, …the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding.

DC v Heller, pages 7-8

These quotes pretty definitively undercut the argument that a firearm is not covered by the Second Amendment just because it looks like a "weapon of war".

 

[jdc1244]

The Supreme Court is loath to hear a Second Amendment case concerning magazine bans and restrictions on semi-automatic weapons such as AR platform rifles.

Until another circuit court of appeals rules to strike down measures similar to those in New York and Maryland, creating a split between or among the Federal appeals courts, the High Court will not consider the issue ripe for review.

Indeed, we saw this with Obergefell, where the states were pleading with the Supreme Court to weigh in on prohibitions of same-sex couples marrying, and the justices continuing to refuse to do so.

It wasn’t until the 6th Circuit Court of Appeals upheld same-sex marriage bans that the Supreme Court finally agreed to hear the cases, compelled to do so because the 6th Circuit was at odds with its sister courts.

 

[CoalTrain49]

The Supreme Court is loath to hear a Second Amendment case concerning magazine bans and restrictions on semi-automatic weapons such as AR platform rifles.

Until another circuit court of appeals rules to strike down measures similar to those in New York and Maryland, creating a split between or among the Federal appeals courts, the High Court will not consider the issue ripe for review.

Indeed, we saw this with Obergefell, where the states were pleading with the Supreme Court to weigh in on prohibitions of same-sex couples marrying, and the justices continuing to refuse to do so.

It wasn’t until the 6th Circuit Court of Appeals upheld same-sex marriage bans that the Supreme Court finally agreed to hear the cases, compelled to do so because the 6th Circuit was at odds with its sister courts.

Are their any lower court decisions that take away the right of the states to regulate semi-automatic weapons or magazines? If there are maybe someone could reference it here for my education.

 

[CapnMac]

As an aside, this thread is an excellent example of "our" side. The antis have created an environment were we have to be more than legal just to get by. That drive then presses us to becom more learned.

Note how that then makes us yearn for precision and accuracy in our learning and in our knowledge.

Which is why when you point out something erroneous by an anti, they look so dumbfounded--they simply do not have the experience of having to be precise, to be right, to be correct. It's also why some are confused by how 'we" can be as harsh upon Fudds and bubbas.

It's kind of a point of pride to be among such learned types, and to be able to engage them in discourse and even disputation at times.

Even as it troubles me for, no where in my reading of our Constitution does it require of its citizens a "law school" level of knowledge to enjoy its fruits.

 

[CapnMac]

Are their any lower court decisions

Not to my admittedly limited knowledge. The Maryland case is as close as I can recall. There have been some splits between the circuit courts, but they were just in detail, not direct dispute.

One of the problms, of course, is finding "good guy" cases to pursue. Most of us just obey the law of the land a n lump it. The hoodulms out there practicing jail-house barratry are not much help at all..

 

[jdc1244]

It’s pointless, of course, to argue whether Heller was ‘wrongly decided.’

The Supreme Court is the final appellate court of the Federal judiciary, and as such it may only address the specific issues brought before it from the lower courts.

State restrictions with regard to semi-automatic rifles, magazine capacity, and the level of judicial review for laws seeking to place restrictions on Second Amendment rights were not at issue in Heller.

Heller was correctly decided given the issue before the Court: the constitutionality of measures banning the possession of handguns.

Those dissatisfied with Heller/McDonald and its subsequent case law must understand that Second Amendment jurisprudence is in its infancy and still evolving, where a comprehensive understanding as to what firearms restrictions are Constitutional and what restrictions are not will be realized in the coming decades.

 

[barnbwt]

But Scalia did detach the operative portion of the 2nd Amendment completely from the prefatory clause. So I don't understand what he was trying to say in the above quote. His opinion in Heller was a complete mishmash, and certainly not his best work. Perhaps he was walking a tightrope, upholding gun rights -- but not too much -- so as to get 5 Justices to go along with the result. (It almost seems as though Scalia thought the militia would be armed with shotguns and other Fudd guns.)

I don't see it as a mishmash so much as non-sequitur. He makes logical arguments that progress in a very abrupt direction, repeatedly makes very broad, direct declarations that follow the supporting logic (that M16s are protected, that militia arms by definition must be held freely by the public, that all weapons in common use for any purpose or suitable for military service are protected, that the RKBA must remain independent of encroaching government interests & control to remain a deterrent against tyranny), then subverts it with an offhand phrase or two --out of the entire opinion-- that form the "dangerous or unusual" and "compelling government interest" cop-outs that the lower courts have subsequently exploited.

It's telling that out of a huge, self-referential opinion (where everything more or less builds on/reinforces itself to support a single conclusion) those two sound bites are all that gets attention, except when Heller is used to strike down gun control (in which case there are large, whole sections with plenty of context lifted for reference). We can all guess until we meet him ourselves in death, what Scalia's motives were in including these uncharacteristic phrases that cap well written arguments with random refutations. It really is as though they were added separately in a haphazard fashion, or placed there by someone else. It really doesn't matter if it was to get Kennedy on board, because Scalia got the vapors over the possibility of permitless carry & machineguns, or because Roberts was afraid of the court overreaching and being ignored (that's basically the non-conspiracy explanation for his upholding of Obamacare, that SCOTUS lacks the authority to challenge a trillion-dollar legislative effort; go along to get along)

What is needed is a lower court opinion, reinforced by SCOTUS, that re-constructs all of Scalia's arguments in Heller, specifically in order to refute those two clauses. It really is a poison pill that needs to be excised somehow before real, enforceable progress can be made against the anti-gun strongholds. It sort of makes sense, because it's not like Bush was going to send the National Guard into Times Square or LA to ensure that permits were being issued properly or people were able to buy hi-cap magazines without harassment; apart from a very few historical examples the SCOTUS generally refrains from forcing such theatrical boat-rocking. Maybe that was the intent all along, effectively a 'stay' on the real ramifications of Heller after clearly spelling out their consequences, until such time that the people demand congress steer us down that rabbit hole (aka national reciprocity, pre-emption, and sporting purposes reform)

TCB