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‘Strict Scrutiny’ Decision on Maryland Semi-Autos Still Leaves Dangerous ‘Common Use’ Threat Looming

Time was, even the Supreme Court acknowledged weapons “in common use at the time” were intended to be used by those defending their freedom against tyranny.

“[T]he United States Court of Appeals for 4th Circuit [applied] strict scrutiny to Maryland’s ‘Firearms Safety Act,’ in a two-to-one decision that could change the face of gun laws for Maryland (arguably one of the most anti-gun states in the nation), and perhaps portend similar relief for the beleaguered residents of New York, New Jersey, California, and the few other remaining anti-gun states,” Andrew Branca of Legal Insurrection reported Thursday. “Virtually all gun control laws will be found unconstitutional if subject to strict scrutiny.”

Maryland’s Orwellian-named edict banned many semi-automatic rifles and standard capacity magazines, naturally with a law enforcement exemption. If “intermediate scrutiny” were applied, the state claiming “public safety” would be enough to have its ban upheld. Under the higher “strict scrutiny” standard, “the law must advance not merely any governmental interest, but in particular a compelling governmental interest [and] must also be narrowly tailored to actually achieve that interest.” That’s been the assumed standard for rights EXCEPT those specified in the Second Amendment, mostly because that’s the way those in power have wanted it.

Whether the ruling will be upheld or overturned on appeal is anybody’s guess. Still, this goes far in validating those of us who were arguing years ago not to listen to useless mainstream Republican squishes — who were adamant that the intermediate benchmark was the highest goal we could hope to attain.

What this win-for-now does not do – and what gun owners had best get up to speed on and not ignore – is redirect the emphasis on the “in common use at the time” excuse for infringements. That was a phrase used by Justice Scalia in the Heller case, and has been a major concept the antis have been pinning their hopes, and their legal strategies on. And in many cases, “our side” is playing right into their hands by focusing exclusively on sporting purposes, and on self-defense against crimes by private actors .

“Judge Robert B. King, the dissenting vote in Thursday’s ruling, wrote that the types of weapons banned by Maryland hardly constitute a Second Amendment violation,” The Washington Times reported. “’Let’s be real: The assault weapons banned by Maryland’s [law] are exceptionally lethal weapons of war. I am far from convinced that the Second Amendment reaches the AR-15 and other assault weapons prohibited under Maryland law, given their military-style features, particular dangerousness, and questionable utility for self-defense.’”

It’s evident that King (fitting name), a Clinton appointee backed at the time by Democrat Klansman Robert Byrd and Republican oligarch Jay Rockefeller,  has no business being a court janitor, much less a judge. While self-defense is unquestionably a benefit, weapons of war are precisely what “We the People” are entitled to have. That’s why the militia was deemed “necessary to the security of a free State” by the Founders.

Any honest reading of their intent and of prior precedent would have no alternative but to concede the “in common use at the time” qualifier in turn relied on U.S. v Miller, a case from 1939 that found a weapon must have “some reasonable relationship to the preservation or efficiency of a well regulated militia [or] that this weapon is any part of the ordinary military equipment, or that its use could contribute to the common defense.”

That’s the key point being ducked, and not just by the man who would be King.

The function of the militia, defined as “all males physically capable of acting in concert for the common defense [and] bearing arms supplied by themselves and of the kind in common use at the time,” was — and is — to field citizen soldiers. And these citizens must bear arms that are suitable for that purpose, “ordinary military equipment” intended to be taken into “common defense” battles.

The militia in the War of the Rebellion did not assemble on the green bearing clubs and spears. They came with the intent to match and best the professional military threat of the most powerful empire of the time.

“Judge King said he sees no substantive difference between an automatic rifle, which is banned, and a semiautomatic rifle,” the news account continued. “Both, he said, can fire dozens of rounds in mere seconds.”

Knowing what you’re talking about is evidently not a requirement for a government gig, at least if you have friends in high places. This contemptible King character’s ignorance about firearms aside, any fair understanding of the Second Amendment would have to admit barriers against machine gun ownership are unconstitutional infringements.

If we let ourselves get sidetracked in the argument that Americans own X number of a certain model or type of gun, or so many million standard capacity magazines, we’ll relegate our rights to what is essentially a popularity contest for sporting and personal defense arms. Standing armies will continue to deploy with weaponry denied the citizen militia under a “common use” misdirection that fails to acknowledge what kind of use was intended in the first place.

Using that rationale, it’s conceivable the antis would be able to require “smart guns” and then outlaw them because not enough people own them. The argument is that stupid and absurd.

Just as the military no longer uses yesterday’s technology, so too must that apply to the citizenry. When technology advances and the most effective “common use at the time” infantry weapon turns out to be a Star Trek-style “phaser rifle,” it’ll be the right of our Posterity to own one.

Otherwise, we might as well try to defend our freedom with spears.



David Codrea blogs at The War on Guns: Notes from the Resistance (, and is a field editor/columnist for GUNS Magazine. Named “Journalist of the Year” in 2011 by the Second Amendment Foundation for his groundbreaking work on the “Fast and Furious” ATF “gunwalking” scandal, he is a frequent event speaker and guest on national radio and television programs.



  1. Guess everyone I know I have always said my guns are for the day Government gets away from our rights and liberties. The second amendment is about war first and the bonus of this is safety and food.With out the first you can’t have the other two . This is not a genius thing not a judge thing it’s the second amendment you tutch it it’s war.

    1. exactly Paul… keep your powder dry, your large magazines loaded, your pistols ready to go and boy do i love firing fully automatics… machine guns are a wonderful tool yet small potatoes in comparison to the arsenal of weaponry the criminals in political office have easy access to. We know the real agenda and one day they will face the Creator and pay for their deceitful atrocities, murders, assassinations, thievery and will not be able to speak a word in their defense. Pray for these fools…

      1. But wait …where the heck is it that I read about a bulletin being sent to cops regarding the “Don’t Tread On Me” stickers/flags and other ‘bullshit’ that seemingly is making US out to be “more dangerous than ISIS” and of a higher threat to The USA’s (public safety) than Boko Haram, ISIL, ISIS, Iran and tons of other bs…
        Perhaps it’s on this site, but with my memory it could be up my kahooda and I wouldn’t know it. lol Anybody else see that particular article ….perhaps it was on shtfplan (which often seems to ‘overstate’ the basic truths at times …but their readers are heavy into that crap I guess)? Besides, if the military is authorized to use fully automatics, then, by God, so are we. PERIOD! “Bump-firing” tools are fun but it’s better just to have a “smith” make the changes to your AR-10 or 15. Then you have safety, single-shot, 3-round ‘bursts’ or “FUBAR MODE.” (my fav until it is time to pick up all the danged brass).
        btw: Anyone here ever tried ‘necking down’ a 30.06 to a .308 or, (perhaps) a 7.62x51mm)? (If so, I’d love to hear about it)

      2. EQUORIAL, ISIS are just the sheepdogs that the ruler oligarths and plutocrats and their fellow travelers or useful idiots are presently using to herd the western world’s sheep in preparation for the slaughter.
        Keep the powder dry. You may be needed soon.

  2. As usual, David, I agree 100% – I cannot think of a single restrictive arms law, that when viewed under strict scrutiny, would pass constitutional muster. Of course, the outcome of all this will depend upon a SCOTUS decision, and we all know how that could turn out. It’s come to pass that our rights are only what the SCOTUS says they are.

    1. i have had conversations with certain law enforcement and the opinion is… regardless of what the “SCROTOMS” SAY, since they are not constitutional but an extension of the executive branch we will just have to be “outlaws” of their infringements and obedient to our God given right… live or die we win. live or die for them still makes them the filth they are.

      1. After 21 yrs of military service (and 16 years into retirement), I am now going to be labeled an ‘outlaw’. How quaint! And since when did SCOTUS have anything to do with ‘trumping’ The Constitution and Amendments?
        This bs is either going to have to be ironed out favorably by the constitutional way (in a superior court?) or the feds are going to be facing exactly what they are “gearing up for” (a revolt by We The People).
        After all, they’d much rather continue with their agendas and lop off all our heads …and you know the rest (as best as we can imagine it will be).

  3. Were not the weapons that were protected by the 2nd amendment on it’s inception, in fact military weapons of war? Hasn’t the weapons that the citizens used follow along with the type of weapons that were being used in the military? After WW1 Bolt action rifles were the norm. WWII, Korea, Viet Nam, The semi auto. After the Gulf wars the AR’s.
    Military “left overs” have trickled in civilian hands since wars have been fought! The founding fathers realized that if the population was unarmed, we’d be right back where we started. YES we HAVE already given away too many of our rights. The other side is always stating that we have to have a “sensible conversation”, Sensible as long as WE are back pedaling.
    The time to say no more is long past. But it can STILL be said now, loud and clear.
    We will concede no more, we will not take another step back, what part of NO do you not understand?
    “We will not obey orders to disarm the American people”, even ourselves, as WE ARE the American people.

    1. For most of our history military small arms design has lagged behind what was available to the private citizen.
      The civilian American pattern rifle of the revoultion was vastly superior to the military musket in range and accuracy.
      During the civil war era while soldiers used muzzle loaders breech loaders, and even repeaters were on the market.

  4. Agreed gentlemen.
    Federal Court or no Federal Court the fact remains that “the people” have a right to keep and bear arms. Apply the KISS Principle (keep it simple stupid). Any part of “…shall not be infringed” do you not understand? The states of Maryland, New York, New Jersey and California are unconstitutional under the Second Amendment. The people (the “militia”) have a right to arm themselves in these states and all states in our union with the weapons of their choosing. We can right all of the articles you want for or against the Second Amendment. We have the right to arms without question—a God given right.

    1. Don’t forget my state; East California, AKA Connecticut, where at least 250,000 so-called assault weapons have gone unregistered.

  5. The anti-gunners want to ban certain guns because they are “scary looking” or look like a military weapon.
    Go to this page:
    www dot ruger dot com/products/mini14TacticalRifle/models.html
    And guess which one they would ban, even though all 6 are practically identical in function.

  6. Brothers and Sisters, look at the picture of Lexington Green at the top of this article, with the British approaching the Colonialists who were out gunned, so I suggest we not allow ourselvess be outgunned in the future . Oppose any and all restrictions on the zSecond Amendment. It is time we closed down any state that attempts or has already restricted of Constitutional liberties. Time to get marching. Leave our weapons home for now and express our right to peacefully protest and build an opposition force too great to ignore. In the meantinem we educate our families, friends , neighbors, church and other community groups.

    It is getting late and we will one day soon be forced to respond in kind. History will document who stood and who sat down. Stand up, speak out while we can for surely if/when our voices are silenced the battle will be on… Peace…

      1. I seriously doubt that any kind of ‘peaceful protest’ would be wise without firearms. The thought of not needing any will get you buried in much the same way as the man in Burns, OR was ‘taken out’. No. When I do go, one or more weapons always are with me.
        I have ALWAYS wondered (and considered), filing “suits” against every state that is doing unconstitutional “bs” – using heavy-duty attorneys and zillions of “We The People” in attendance. heheh… History is showing us that the longer we do nothing the more we are losing (meaning: our constitutional and God-given rights).
        Personally, it is becoming ‘a can of worms’ (due to their half-a**ed ‘attacks’ meant to denude us of certain rights, one-by-one).
        “They” have created a nation of “sheeple” …and THAT may well be what puts us in a definite minority.

  7. The only way to lose our Second Amendment rights is if we GIVE IT AWAY! WE will have to challenge these liberals at OUR front doors. I will not let this over reaching government take my weapons without a fight. This is what started the American Revolution, we won that one and if we stick together on this, we can win the second one,. The worst thing we can do is give up and give in.

  8. Why is it no one ever cites United States v Miller 1939

    The weapons protected to the people by the 2nd Amendment are those typical and commonly used by the US Military…

    How can judge King say the AR style rifles are not included? Is he trying to cover this landmark ruling up or does he just not know case law???

  9. time permits were challenged in Texas. Paying for a right, testing for a right and registering for a right are all unconstitutional. I need money, and I will challenge it. ugh having to have 6 figures to get a right restored should be unconstitutional as well.

  10. in the 1939 case of United States v. Miller the Supreme Court ruled that the sawed off shotgun that Miller had was not a weapon in common use in the military and therefore was NOT covered under the second Amendment. By extension if the only weapons covered are those in common use, such as automatic assault weapons, WOULD be covered and therefore all assault weapons bans, etc. should be null and void and open for every law abiding citizen to own.

    1. What about trench guns WW1? Ithaca model 64’s in the Mekong Delta? They were of often modified and produced in a shortened version with the discontinuer removed to allow shooting from pump with the trigger pulled.

  11. This is why we voted with our feet and moved 2 months ago to a very rural area in Arizona. My SBR AR goes with me everywhere without a second glance here.

  12. Essentially any firearm can have some purpose in a well-regulated Militia–from actual modern military-grade arms to things like the “liberator” pistol of World War II fame–and thus would be absolutely protected under the Second Amendment (without recourse to any phony judicial “:tests” and “standards of review”) if the first thirteen words of the Amendment were given their proper prominence, and their legally controlling character were recognized. Cases such as Miller and Heller are largely beside the point. An opinion of the Supreme Court does not determine what the Constitution means; rather, the Constitution determines whether an opinion of the Supreme Court is correct or incorrect. On that basis, both Heller and Miller are defective. Reliance on one to correct or supplement the other will ultimately prove self-defeating.

    1. …it boggles my mind that The Constitution (Common Law) isn’t taken “word for word” as it is meant to be THE LAW. Attorneys most often “twist and convolute” the heck out of “it” instead of using it “as was meant to be used.” (And there’s the problem …ppl trying, and often succeeding, in ‘twisting’ the words into different meanings …or ignoring it altogether and forming Police Forces all over the United States …TOTALLY unconstitutional and yet they can kill you and walk. So, I agree. We are about out of time and there will be some sort of war …and the feds are already geared up for such and hoping they can “do us in” before we do THEM in. Hard to conceive that our gov is about 89% corrupted isn’t it? It’s even harder to believe what “they” have been doing globally (that we never, ever are told of), to “force” matters upon us in hopes of tearing down our nation. Otherwise said: Lock ‘n Load men (and keep your families safe from these bastards).

  13. Well said Mr. Codrea and Mr. Vieira. While there may be some relief generated in the courts, our ultimate defense will come from the unwillingness to comply. Molon Labe!

  14. Metaphorically;
    According to Kings argument, the fully automatic word processor and the semiautomatic electric typewriter are equally capable of firing dozens of words in mere seconds. Are these than not equally lethal threats to the second amendment as they were not ‘in common use at the time’? Are we to relegate back to the cap and ball of printing; the typeset printing press? Perhaps the word processors ‘sporting purpose’ and ‘questionable utility for self defense’ are the overriding factor to be considered? Is it ‘sporting’ to use the word processor in the protection of the country or in defense of oneself?
    “A well regulated media being necessary to the security of a free state, the right of the people to keep and bear quill and ink, shall not be infringed”… yeah, it’s that stupid.

  15. All of your regulations, policies and laws are Nullified ! Thats right NULLIFIED !! The law of the land is the 2nd Amendment.
    “Shall not be infringed” So stop attacking our rights.

    1. If only we could get the States’ leaderships and legislators to face off the general governments’ overreach and nullify, each State as it so pleases, any unlawful rule, regulation, court ruling or legislated law from Congress that abridged any part of our Constitution, and could enlighten enough of the voters to pick only those adjudged to be Constitutionalists for the Congress there might be some change. But, so long as about half of the population and growing being on the dole and dependent on big momma’s welfare state, what chance do you expect?
      Nullification is better than a civil war. It could be accomplished State by State based on each State’s interest. What we so do not need is another Constitutional Convention that, once called becomes federal (general or central government led) that opens the Constitution up to various amendments. For instance, a balanced budget amendment that even mentioned those alphabet agencies of the executive that have no Constitutioal basis would become lawful. Too many risks; to few opportunities for gain.

  16. There is only one reason states around the District of Criminals is hammering hard against weapons ownership. Because they form a buffer zone.

  17. Hmmm, I did not post anything at all and I am being repeatedly told “It looks like you already posted that comment”

    How about this one? Great servers…

  18. ““Judge Robert B. King, the dissenting vote in Thursday’s ruling, wrote that the types of weapons banned by Maryland hardly constitute a Second Amendment violation,” The Washington Times reported. “’Let’s be real: The assault weapons banned by Maryland’s [law] are exceptionally lethal weapons of war. I am far from convinced that the Second Amendment reaches the AR-15 and other assault weapons prohibited under Maryland law, given their military-style features, particular dangerousness, and questionable utility for self-defense.’”

    Not only is Judge Robert B. King incorrect, but he needs to be removed from the position he is occupying as he does not know the US Constitution to which he is REQUIRED to be bound by an Oath to support and defend it from all. Basically, according to the requirements for all judges by the US Constitution he is NOT using the constitutionally required “Good Behaviour” that would allow him to remain in that position. Plus he is breaking his Oath which is a felony and the crime of Perjury. I believe he is also committing Treason, or voicing Treason against the American people.

    1. Assuming (without a doubt) that everything said about Mr. King is true …what confuses the heck outta me is how they can compare an AR to it’s military counterpart, the M16. AR’s basically have a ‘switch’ (safety/off safety …and NO OTHER MODES)!
      Sounds to me like Mr. King just may be taking ‘very much money’ from under the table, or perhaps land given to him by The BLM (some in OR perhaps?). I also believe that such a judge is no judge at all, having made a mockery of what a judge is supposed to be is a felony within itself (one should think). Fire the son’ma’bitch!

  19. We are at a point that we either comply or we dont. I vote we dont and ignore all their unconstitutional rules regarding the second ammendment. Dont copmply with any of the crap they produce. iTS OUR RIGHT AND THEY HAVE NOTHING TO SAY ABOUT IT. Stand your ground and if they have the balls to come to your door step demanding you comply just say no and very politely shoot the bastard in the head. Enough is enough . I am an American and I took the oat and I will defend not just the second but all of our consttutuional ammendments. As Charlton Heastin Said ” You Can Pry It From My Cold Dead Hand” Stand you ground dont comply with illegal laws put in place by your King. God Bless us all..

  20. All and any bans or regulation seeking to control what arms an American can or cannot own is illegal, treasonous! The gov and judges are all criminals, traitors , engaged in breaking the law and oppressing the people. All gov engaged in gun control activity is illegal, period.

  21. Judge Robert B. King, the dissenting vote : “’Let’s be real: The assault weapons banned by Maryland’s [law] are exceptionally lethal weapons of war. “I am far from convinced that the Second Amendment reaches the AR-15 and other assault weapons prohibited under Maryland law, given their military-style features, particular dangerousness, and questionable utility for self-defense.’”

    Military style features like pistol grip stocks, flash hiders, bayonet lugs, etc… How in the world do these things make a rifle more dangerous? They don’t. They do, however, make a fine set of horns to put on the devil firearm. Never believe for a moment that the goal of these laws is to ban “dangerous assault weapons”. The goal is to disarm each and every one of us who is not active military or law enforcement.

  22. Kolbe v Hogan will be vacated by the full bench of the 4th Circuit when it returns from District. Same way as Peruta is about to go any day now.

  23. The so called term (assault weapon) used by the gun grabbers is a term that is wrong, wrong, wrong. A assault weapon used by the military is illegal except with special licensing and permits by civilians. We all know that a assault weapon has a select fire switch that allows it go be set to machine gun. The politicians and the lawyers and judges apparently do not know what an assault rifle is. The Armalite Rifle 15 is a single shot automatic rifle. We should first get the definition of what an assault rifle is before we go passing laws outlawing them.

  24. Stay well prepared because this situation can not continue like this for long. Everyone is aware that this bogus Administration, the Global Elites, The UN and the Socialists can not bring this “last big domino” down completely and incorporate their New World Order dictatorship until we are disarmed. That’s the bottom line….and they will NOT stop their full attack on our American Constitution. There will be a confrontation and it is imminent. Be prepared, stay connected & inform those around you that share your attitude. E Pluribus Unum.

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