Fourth Circuit Second Amendment Subversion Highlights Critical Need to Vet Judges
On Tuesday, the United States Court Of Appeals for the Fourth Circuit, in the matter of Kolbe v. Hogan, upheld Maryland’s so-called “assault weapon” ban. The divided decision dashes hopes raised last year when a three judge panel ruled the doctrine of “strict scrutiny” should apply in determining if edicts like the Orwellian-named Maryland Firearm Safety Act violated presumed Bill of Rights protections.
As noted in an Oath Keepers analysis at the time, that still left open the question of how courts would interpret the “legal” benchmark for weapons designated “in common use at the time.” What’s clear from the en banc ruling is the dominant thought on the Fourth Circuit repudiates reality by denying the function of the militia, to field citizen soldiers bearing “ordinary military equipment” intended to be taken into “common defense” battles.
The court contorted that, denying such weaponry is protected, and further, “even if the banned assault weapons and large-capacity magazines are somehow entitled to Second Amendment protection — the district court properly subjected the FSA to intermediate scrutiny [levels of scrutiny explained -DC] and correctly upheld it as constitutional under that standard of review.”
You can read about the decision all over the place. Pro-gunners are decrying it. Gun-grabbers are in-your-face rejoicing. No amount of punditry or quoting the Founders is going to change things. What’s needed is a Supreme Court ruling, and they could side with Maryland or just let everything stand by doing nothing, that is, by not hearing the case and letting the Fourth’s decision stand.
So what can we do to increase the odds of a favorable outcome?
For now, we need to be holding our Senator’s feet to the fire on who they vote to confirm.
Let’s look at the Kolbe judges, specifically at the ones who evidently believe the Second Amendment has nothing to do with “the security of a free State.” From the decision:
Judge King wrote the opinion for the en banc majority, in which Chief Judge Gregory and Judges Wilkinson, Motz, Keenan, Wynn, Floyd, Thacker, and Harris joined in full; Judge Diaz joined in part as to the Second Amendment claims and joined as to the Fourteenth Amendment equal protection and due process claims; and Judges Niemeyer, Shedd, and Agee joined as to the Fourteenth Amendment claims only. Judge Wilkinson wrote a concurring opinion, in which Judge Wynn joined. Judge Diaz wrote an opinion concurring in part and concurring in the judgment as to the Second Amendment claims. Judge Traxler wrote a dissenting opinion as to the Second Amendment claims, in which Judges Niemeyer, Shedd, and Agee joined. Judge Traxler also wrote an opinion dissenting as to the Fourteenth Amendment equal protection claim and concurring in the judgment as to the Fourteenth Amendment due process claim.
Now, focusing on the anti-2A contingent, let’s look at who appointed the robed oath-breakers, and who supported their confirmation. Of significance: Republicans participated in it all, and one of the most vocal opponents of an individual rights “interpretation” of the Second Amendment is Ronald Reagan appointee J. Harvie Wilkinson, who took SCOTUS to task for confirming that truth.
That brings us to another nominee currently under consideration for the Supreme Court, Neil Gorsuch. Evidently saying “the Second Amendment … may not be infringed lightly” is enough for all the national gun groups to declare this guy the Second Coming of Scalia. What they won’t answer – because they can’t – is “Why?” There are plenty of competing interests in his personal background that raise flags and due diligence scrutiny, but instead concerns are not just being dismissed – they’re being ignored. We’re expected to just trust the Republicans to do the right thing — like they did for (to) us with William Brennan, Earl Warren, Warren Burger, David Souter…
If and when the Supreme Court hears Kolbe, will it be a crapshoot?
No one expects the Senate Judiciary Committee to try and pin Gorsuch down on specifics of cases he’s likely to hear. That said, there’s no rule against asking about understanding and principle, and it’s not expecting too much for those taking their “advice and consent” role seriously to pose some pointed questions on just what he thinks the Founders meant in the Second Amendment. And requiring unequivocal responses under oath.
What other job lets candidates play coy with how they intend to follow the rules, and then hires them?
With Trump, we’ve been given a rare opportunity to shape the future direction of the high court and subordinate federal courts for years to come. He would not have been elected without strong conservative and gun owner support, and that was given because he promised things were not going to be business as usual.
Now is no time to be applying rubber stamps only to find we’ve been sold (yet another) bill of goods. If the Supreme Court ends up saying we have no right to keep and bear arms of the type needed to defend Liberty, good people are going to end up experiencing things a lot more painful than buyer’s remorse.
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