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Fourth Circuit Second Amendment Subversion Highlights Critical Need to Vet Judges

Fourth Circuit Second Amendment Subversion Highlights Critical Need to Vet Judges
Here’s an outcome the robed betrayers haven’t factored into their subversive rulings. [Via Matthew Bracken]
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.


If you believe in the mission of Oath Keepers, to defend the Constitution against all enemies, foreign and domestic, please consider making a donation to support our work.  You can donate HERE.




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. Yup, another Bill of Goods.what did any one really think was going to Happen? Most people (peons) believe in unicorns and rainbows sold to them for who knows how long.I really don’t think that any of them think or know,about the extreme extermination that will come with that,or some how
    think that they are special. Those in power have been placed there and I don’t think we are going to push them from their cushy positions.
    I am a believer that Jesus Christ is Lord and there are no others. All of the things that are coming on this world have been foretold,The Bible tells of a few places that will be spared for the sake of some of God’s elect,I was hoping that the U.S. might be one of them because of a couple of scriptures that I have studied, but maybe not.Besides all of that even if the U.S. Were spared from the anti-Christ, it would be an uneasy place to rest and only a few short years before the Lord comes back and sets up His Kingdom and after that the country would come under His judgement And you had better be written in the Lambs book of life at that time,or it is curtains for good.
    Anyway I know there are some real brothers in Christ that know what I am talking about, and if there were ever a time to tell people about the Lord it is now. Everything else is going to blow away, like the dust in the wind. I really do hope some of you will repent and commit your life to Him now. Not a lot of time left.

    1. I believe in the Lord and I only have two cheeks to turn until I stand my ground. I will not give up any of my weapons based on unelected judges that misread the 2nd amendment.I doubt if any Oath Keeper would give their weapons to a rogue government going against our rights.

      1. A free people ought not only be armed and disciplined, but they should have sufficient arms and ammunition to maintain a status of independence from any who might attempt to abuse them which would included their own Government -> George Washington

    2. Do you REALLY think a country that has condoned and paid for the murder of 60 million unborn children will escape the wrath of God? Sorry sir but that’s just delusional. We are ALL complicit because we allow our tax money to kill the vast majority of them……we are ALL guilty!!! And God is aware of that……..we won’t be spared anything……and we don’t deserve to be

  2. Short of the local sheriff showing up and demanding I open my safe for gun confiscation, I am not concerned. And living in Montana (thank God) that’s not going to happen. On the other hand, it is not a stretch to assume that folks in some of these districts, such as DC, NY, CT IL, CA, etc will find themselves under even more restrictive gun regulations. Pray that we get a favorable, no caveat, ruling from the Supremes that removes all doubt again about individual rights and firearm ownership without such restrictions as imposed by those stares and others.

  3. “Keep and Bear Arms.” Show me the qualifiers in that statement. How about the qualifier in “Shall not be Infringed?”

    It doesn’t say how you shall keep them. It doesn’t say how you shall bear them. It doesn’t even spell out the type of “Arms” you shall “Keep and Bear.” The fact of the matter is, our Constitution was designed to give “Supremacy” to the States, or to the Feds only “In Pursuance of the Constitution.” Not to the Regulatory agency. Not to Congress. Not to the President, and not even to the Judicial based on Moral Interpretation.

    Just got a book by KrisAnne Hall, “Sovereign Duty.” There were two more written by her, sent with it. She explains things in very simple terms and defines words that we often look past in the Constitution, such as “Delegated.” Sometimes our Government confuses that word with “Surrendered.”

  4. It sounds like no one has read Article 3 at all. The judiciary is not granted the authority to rule on anything in the constitution or bill of rights so their authority is illegitimate. They are granted authority to rule only on the laws “Under” the constitution. Read it.

    1. If what you say is true then the court would have no power to rule any law constitutional or unconstitutional. By your logic they would have to refuse any second amendment case and this law (passed by Maryland) would stand.

      1. Actually, since the Second Amendment is not under the jurisdiction of either the state governments, nor the federal government. The Preamble to the Bill of Rights makes that clear. Also the words “shall not be infringed” should also make that clear, starting with the word “not”.

    2. I believe that it is important to read these for oneself. Remember that all punctuation, including capitalization matters in the meaning.

      Article 3, Section 2: The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;
      — to all Cases affecting Ambassadors, other public Ministers and Consuls;
      — to all Cases of admiralty and maritime jurisdiction;
      — to Controversies to which the United States shall be a Party;
      — to Controversies between two or more States;
      — [between a State and Citizens of another State]*;
      — between Citizens of different States;
      — between Citizens of the same State claiming Lands under Grants of different States, [and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.]*
      *11th Amendment changed these parts to The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State or by Citizens or Subjects of any Foreign State.

      In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the Supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the Supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.

      The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed.

  5. the bench will be a riddled place to be….since the 2A is written in easy to understand english…..except for those that want to control; and enslave you….the federalist papers are very clear as to the intent of the bill of rights…and the word “people” is the only qualifier I need….and will defend to the end…may God have mercy on those that tread on me….amen

    1. I agree and may God have mercy on those that come up against us willing to fight and die for our rights under the law of the land our Constitution.

    2. The way it’s going to work is that the gun grabbers are just going to wait until you die and then your relatives will take your guns to the police station or buy-back where they will get put on the scrap heap. If you don’t intend to fight, politically or otherwise, you would be money ahead if you just sold them now – while you still can.

  6. Like I’m fond of telling “law abiding people” the Constitution defines your rights, it does not ensure them. If you are not brave enough to exercise them, then, you are to blame for emboldening a government that would enslave you.

  7. why anyone on the gun-owning Right would give any respect to what this or any committee of lawyers has to say is beyond me. They can go ahead and pass an absolute gun-ban. It will not have the slightest effect on Coming Events.

  8. For Matthew Bracken-you will probably only have zero guns left, a felony conviction, and no house after you pay the legal bills you will acquire after the state you live in calls the gun police to confiscate the guns your neighbors have been watching you take to range recently. You’ll ask NRA for help but as a felon they won’t help you. Since your guns are not mainstream you’re not going to get sympathy from local gun owners. Ask people who’ve already been down that path before you go talking so smart. And if they don’t come after you, they’ll just wait you out. They have all the time in the world. How much do you have? In two years time the losers from this election are coming back with s vengeance and they are going to make gun ownership a living hell for those that haven’t experienced it yet-just to share the misery. Why? Because gun owners don’t have the faintest idea of who they are up against. Despite all the supposed wins, no gun laws have been repealed and none are likely to be repealed. NRA will ask for more money to Defdnd the Constitution and the laws will remain on the books. If they have plans to repeal Bartley-Fox or the Sullivan law or CA or NY or CT semi auto bans no one had heard anything yet. So unless you have a plan other than to talk smart please keep it to yourself.

    1. Identify and locate the enemy. Patriots need our own simple version of the Utah database. Our organizations need to start identifying the locations of these Enemy Traitors. Rip the mask off the faceless bureaucrat and and take it to him, instead of the SWAT team.

  9. “For now, we need to be holding our Senator’s feet to the fire on who they vote to confirm.”
    Yes, we’ll be holding someones feet to the fire as they cart us off to a re-education camp, but we’ll be holding those feet that never seem to get burned.
    The Constitution recognizes Militia as the power “to execute the Laws of the Union”. When might we, if ever, start exercising our authority to stop the tyranny, and place some of these judges behind bars for violating the oath of office?

  10. Why don’t we bust these oath breakers, its a violation of the law. Title 5, section 7311 tells the
    penalty for oath breaking.
    This is the only accountability we have !

  11. September 1, 1774, the Governor of Mass. General Thomas Gage sought to disarm the public by ordering 300 British troops to seize black powder supplies in Charlestown, Mass. This event was known as the Powder Alarm. By the following morning, 4000 colonists had assembled and rose up against the Governor’s effort.

    As is typical of every nefarious and tyrannical government, the first step to assert power over the people is to disarm the citizenry. The 2nd Amendment was penned with this specifically in mind. Self defense and hunting were merely riders to cause.

    Further, early Americans had and used state of the art weaponry for that period in history. If that was true then, there is no reason to believe Americans today shouldn’t have access to military grade weaponry which is state of the art now.

    No matter how many words are thrown at the ruling, the simple fact is the judges have ruled to inhibit and by default disarm the American citizenry. Now what.

  12. It is about time that we the people DEMAND that those judges who make law from the bench and do not abide by the constitution be REPLACED and stop this PERSONAL FEELINGS being used to make their own laws.

  13. The Kolbe v. Hogan decision is the inevitable outcome of the NRA’s promotion of the “individual right/self-defense” theory of the Second Amendment, rather than a focus on the first thirteen words of the Amendment. This resulted in the District of Columbia v. Heller decision, the flaws in which the Fourth Circuit has now seized upon to decide Kolbe v. Hogan. I am considering submitting an amicus curiae brief (on my own behalf) to the Supreme Court, urging that a petition for a writ of certiorari be granted. If that petition were granted; then I would write a further amicus brief “on the merits” (as the expression has it). Other than that, there is little that I can do (not being one of the attorneys advising Kolbe), besides saying “I told you so…and told you so…and told you so”. The people who litigated Heller did not listen then, and we are now paying the piper. If their line of attack is not changed–and Kolbe v. Hogan stands, to be followed by other courts–then Heaven help us.

    1. I have read a couple of your works – especially “Dare Call it Treason” which I find fascinating. I see a lot of comments here where we should be taking these “representatives” to public stocks and leaving them to take rotten eggs in the face – for starters – but we’re too civilized. Meanwhile the collectivist filth who have some utopia dream in their perverted hearts have gotten together to slowly, progressively, overthrow of our Constitutional Republic. It is so entrenched and so woven into the fabric of our nation that it is going to take a whole lot of commitment and LEADERSHIP – we need strong united voices who SEE the issues and unite the AMERICANS – not the occupiers of this land. Those who voted Trump in …… 98% of the counties in the US……there is our America. At least we still have the Electors!!! There is the hope if this population becomes more educated, more motivated with Constitution FACT and ORIGINAL INTENT. Then the judges and the “Harvard” professors may get the message. Seems to me Article III Sec 1 the Constitution says ….The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behavior….. Behavior Capital B. THAT MUST mean conformance to the Constitution’s INTENT when articulated. That should be the nail to put these “judicial activists” back where they belong.

    2. When the Heller decision came out I was asked by some friends to comment. My take, and I am not happy at all that I was correct, was that there would be further attacks on the 2nd based on the states ability to regulate and to what extent. I contacted Larry Pratt of GOA who agreed.
      Now the so-called leadership of the pro-2nd community is so tied to this individual rights theory that they can’t go back and admit that they’ve misinformed their followers. The saddest part of this is that no matter how you explain it to the memberships of the various organizations they will not see the light.

    3. Mr Viera….The problem I see is that most people have no idea what the US Constitution says so they cannot know what it means. For example: Article VI section 2 cannot be made more clear. The Constitution, all laws made in pursuance of and all treaties MADE UNDER THE AUTHORITY of the United States IS the SUPREME LAW OF THE LAND. Further more it says that ALL judges SHALL BE BOUND BY and ANY law or Constitution in any state to the contrary “notwithstanding”. Otherwise known as invalid. That means EVERY WORD of the US Constitution is the supreme law of the land. So by that admission, we MUST concede that the Preamble is part of the Supreme law of the land. IN the preamble (aka mission statement) there are exactly 6 items mentioned. 1 form a more perfect union, 2 Insure domestic tranquility, 3 establish justice, 4 provide for the common defense, 5 promote the general welfare, 6 to secure the blessings of liberty to ourselves and our posterity. There is not 7 or 14 or 23, there are exactly 6 (six) reasons the US Constitution was written. We have to first accept the document at it’s face value. If we challenge ANY part or word of the US Constitution we have effectively left the rest open to interpretation. Interpretation may also be defined by “precedent” which is law of man or opinion…..aka tyranny. So the real problem I see is that we have to first educate the people that they CAN actually understand AND comprehend every word in the Constitution……NO judge has the authority to INTERPRET the Constitution….it stands on it’s own and ANYONE can read it. It is a simple document and there is NO ambiguity. Some of it could have been written a little better like Article V but it is what it is. I digress…These days the judges and lawyers work by PRECEDENT and therefore we are living in tyranny….MUCH worse than when brave men risked everything including their lives to separate from king george. It is the justice system, lawyers and judges and OUR unwillingness to hold their feet to the fire. There has never been a scotus removed from the bench in our 241 years and you know damn good an well there has been many that SHOULD have been removed……ie ghinsberg, kagan and sotomayor to list current ones. NONE of them are adhering to their oaths and ALL of them should be impeached. Alas but we are living in a 3 part oligarchy where the 3 branches are COVERING for each other instead of policing each other as designed. We are also in an environment of precedential law in lieu of Constitutional law. I say the next right thing to do is to MAKE congress and the other branches of government adhere to their oaths by force if necessary (we are given the authority by the Declaration of Independence….a still valid document) and force the government into capitulation…INCLUDING the original 13th amendment…..that WAS actually ratified AND published…only to be removed from the record by LAWYERS!!! It is LAWYERS that are our biggest problem and that’s that. Maybe not every single one is dirt but the vast majority are. As there are no words in the US Constitution that say “refer to” or “except for” as in the second amendment, we HAVE to force the government to adhere…that is the only way to save America and our culture and way of life. I heard kucinich say the other day that we may not place a test of religion on the refuges coming to America…..REALLY???? Show me that is said in the Constitution as you claim! It is not there. THAT IS EXACTLY the problem…and no one is well read enough to stop that kind of language…..a lot of people believe him and he’s either a liar or really stupid. What say you sir?

  14. Well Hear In California, We Will Be & Stay Ready,@ Any coast. Oh Governor Jerry Brown, Likes Opened Borders, But Not All Californians Do! Over Hear In Cali We Have Too Many Democrats, In Charge, That Control Everything We Will Be The FRT Line Of Resistance I Am Street Smart & I Know When I Am Being Set Up. But God Tells Me Different .

    1. You are being disarmed little by little. I realize that the so-called pro-2nd community will cling to the ridiculous notion that the individual rights theory is the only way to go.
      What about those of you in California? Have you considered at all that the answer is to revitalize the militia and regain your sovereignty? It was only a few determined people who promoted the break from England when it was far less abusive than our present federal and state governments.

  15. Everyone born into this world has a finite lifespan on the planet. Whether you die a slave or you die fighting for freedom, you’re still going to die.

    You have but one question to ask yourself: Will I die a free man or a slave? Your answer to that question will tell you where you stand. All the rest is just a dog & pony show.

    I already made my decision. So until the time comes, I chose to continue living my life to the fullest.

  16. When these convicts in office and the Unelected uneducated judges try to take or play to much with the second amendment. I believe their enough countrymen in the USA that will band together. United they wont take any guns.


  18. The issue here is this: Is the Constitution cast in stone forever as the Founders INTENDED IT TO BE – that is the ORIGINAL INTENT – well documented in the Federalist Papers, OR is it “a living document subject to the changes of an evolving world” as is stated in the Forward of a popular Constitution booklet being handed out in prisons and campuses? WE know basically what are our GOD GIVEN RIGHTS, and WE know those who are hard at work to take them away. I too am a Born Again Christian. I am also a Vet. The combination of the 2 makes me stand my ground. I will NOT surrender my property to any unconstitutional rule made by treasonous “legislators”. Here in NY we are pushing the CIVIL RIGHTS issues resulting from Governor andrew cuomo’s “NY SAFE ACT” stuffed down our throats in Jan 2013. He demanded registration of “assault rifles” (which no one here owns). Result? 97% civil disobedience. The governor was silent on the result. A law suit by a prominent activist lawyer forced him to make public the numbers of compliance. He’s been silent ever since. I’ve talked with young girls at cash registers in our local grocery stores….even THEY understand “shall not be infringed” and what NY is trying to do. I do hope the “authorities” have some common sense about them, they better be careful. They included a mental health clause that works as follows. You go into the hospital Emergency Dept, saying you can’t sleep. The staff evaluates you and determines you have “mental issues” and they report you to the NY State Police. They DON’T tell you that you have been reported. Last I heard there are over 400,000 people on the governor’s list… they are coming for guns if you are on the list……this is not “hype” this is actually happening as I type. WAIT TILL THE POPULATION WAKES UP TO THIS ONE!!!! Stay tuned.

  19. We as Americans have a right and a DUTY to throw off such a government that has become tyrannical…..guess what…ours has. We MUST BY OATH stop these corrupt judges that are NOT adhering to their oaths! By whatever means and that unfortunately includes violence! There comes a time when nothing else will work period! I don’t see any other solution. If we do not get control back of our government we will not have an America. It is already unrecognizable as it was designed. We have let the men and women that risked everything to WIN our freedom down and slapped them directly in the face….while in their graves. What we are leaving our children is INSANE!!! There will be no America for our children…only the Islamic socialist state of the united states. We have been successfully invaded BY OUR OWN GOVERNMENTS HAND!!! If you deny that then I’m wasting my breath making any comments. I fly for a living……I see things in many places. The first time I went to Philadelphia in a long time about 6 years ago I was APPALLED to see all the burkahs surrounding the Liberty Bell. WE ARE LOSING OUR OWN CULTURE IN OUR OWN COUNTRY!!! IN THE FOUNDING CITY OF OUR OWN CULTURE AND DOCUMENTS!!!! They ARE winning and when they have the numbers we WILL face the same thing Europe is involved in right now. I can’t even think of how the world is allowing islam to rule the world! We are losing and they are winning. It is just a matter of time. AND OUR OWN GOVERNMENT HAS CAUSED AND PROMOTED THIS!!! There is NO such thing as a moderate muslim…..if they are muslim (true believers) then they cannot adhere to our laws or Constitution and they MUST convert or kill us….that’s a fact my friends…….There may be some muslims that are less violent but they are in full favor of converting the world as their filthy book says they must do. We better get a grip soon or there will be nothing worth fighting for. I REFUSE to tell my grandchildren that OUR generation had the opportunity to stop this and we did nothing…….We should ALL feel that way…there is no other solution people. We must adhere to OUR oaths if no one else will!!! I took that oath more than 50 years ago and I meant it then and I mean it now. We have to fix this and we have to fix it together!!!! One man will only go to jail and lose everything he has ever worked for….but united we can stop it……

  20. I wrote to my republican senators yesterday because a senate bill regarding florida carty and gun free zones is to be heard this week. Today i got two form letter responses back, telling me that so many bill aee important, and if one of thier senate commitees were to hear a bill i was concerned with, they would do thier best to represent all the people in thier district.
    The system is out of control, and the senate is steering its own course , and has no interest in representing anyone who is not part of thier own career advancement.
    Its time to take back our country and strip government of its ineffective members.

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