Fourth Circuit Court of Appeals decides the Second Amendment is just a suggestion

Liberal politicians who run states and cities have certain habits they come back to again and again. One is the passage of gun bans they know perfectly well are clear violations of the Second Amendment. Why do the do this? Partly because ideologically they can't help themselves. But also: They hope to create test cases in the courts that, they hope, will produce favorable rulings and thus establish case law that renders the entire Second Amendment null and void. Toward that end, the State of Maryland scored a very big victory today, as the Fourth Circuit Court of Appeals upheld an "assault weapons" ban that can't possibly be defended as constitutional. So why did it survive? Because there are many in the federal judiciary who share the goal of repealing the Second Amendment, and hope to be the judges assigned to these test cases. The Fourth Circuit really outdid itself with this one.

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How bad was the ruling? Take it away, David French:

How can it reach such a conclusion? Remember the formula: contempt, willful ignorance, and fear. First, let’s look at the court’s breathtaking contempt for individual rights. Rather than read the Supreme Court’s controlling opinion in District of Columbia v. Heller according to its plain language, it deliberately distorts Justice Antonin Scalia’s majority opinion. In Heller, Scalia clearly stated that the sorts of weapons the Second Amendment protects are those that are “in common use at the time,” with exceptions that apply to those weapons that are “dangerous and unusual.” Why the addition of “and” unusual? Because every single working gun ever made is dangerous. To illustrate his point, Scalia then provides examples of specific types of “dangerous and unusual” guns — “M-16 rifles and the like.” Here’s a news flash: The M-16 isn’t the same as a civilian “assault weapon” like the AR-15. The M-16 variants in use in the United States military are capable of being fired in both semi-automatic and fully automatic (three-round burst) modes. If you think that the M-16 and AR-15 are alike, then walk to your local gun store and try to buy an M-16. Go ahead. I’ll wait. Are you back yet? Do you have an M-16? No? That’s because it’s an entirely different category of weapon, governed by different federal statutes. The Fourth Circuit, however, deliberately conflated semi-automatic weapons and automatic weapons. And it went to absurd lengths to do so.

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There is much more to French's excellent analysis than I can fairly excerpt here, so please click through and read the whole thing. It's very instructive to see that the Fourth Circuit so badly mangled Scalia's argument in Heller to reach the conclusion it did. It speaks to a group of judges looking for a legal rationale for a ruling they were already bound and determined to issue, rather than following the law wherever it leads you, which is what judges are supposed to do. Here's what's ironic, though, about the dreck that is this ruling and French's solid analysis of what makes it so bad. Having lost the presidency, Congress, and the vast majority of governorships and state legislatures, the only thing the left still has to thwart conservative policy initiatives is the prospect of help from liberal judges. In this case, they upheld an unconstitutional law passed by a Democrat governor and legislature in a blue state. But elsewhere, as in Texas today, judges are striking down duly passed laws that by any reasonable standard pass constitutional muster. The Supreme Court may yet save the Second Amendment, and maybe a judge that understands the separation of powers will restore the right of Texas lawmakers to decide who gets taxpayer money. But the reason this is so ironic is that David French was one of the leading voices arguing during the presidential campaign that the Supreme Court was not sufficient reason to support Donald Trump in the general election over Hillary Clinton. I think French is a terrific writer and thinker on all kinds of issues, but he was #NeverTrump to the core and believed a Trump presidency would be so injurious to the "conservative movement" that even the prospect of a liberal court majority for the next generation wasn't enough reason to back Trump. I wonder how happy French is today that Trump was elected, and that Neil Gorsuch stands a very good chance of being the deciding vote in a ruling that overturns the Fourth Circuit and restores the Second Amendment. The federal judiciary is out of control, and that is a much bigger problem that Donald Trump's communication style or anything else you don't like about him.

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Dan's new novel, BACKSTOP, is a story of spiritual warfare and baseball. Download it from Amazon here

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