Joe Forbes - Fourth Court of Appeals Assault Weapon and Magazine Ban.

Advocates for the Second Amendment were dismayed by the United States Fourth Circuit Court of Appeals' recent decision in Koble v. Hogan, which held that the State of Maryland was within its rights in passing an outright ban on "assault weapons" and magazines holding more than ten rounds.  North Carolina and Virginia are within the Fourth Circuit's jurisdiction, so, for so long as the decision is allowed to stand, the legislatures of both states could pass similar bans, and constitutional challenges in the courts would be futile.

The plaintiffs were Maryland gun dealers and residents who wished to buy or sell an "assault rifle", but were prohibited from doing so under the new law. The U.S. District Court had decided that the Maryland law was constitutional.  Plaintiffs appealed to the Fourth Circuit, and a three judge panel overturned the District Court by a 2-1 vote, deciding that the ban was an unconstitutional infringement on the rights of the plaintiffs under the Second Amendment to keep and bear arms. Maryland petitioned for all 14 judges on the Fourth Circuit to rehear the case en banc, or sitting as a whole.

The 82 page majority decision reads more like a gun-control propaganda piece than a well-reasoned opinion by learned judges who take seriously their role as protectors of the Constitution, and in doing so, reveals the bias of the judges as well as their downright ignorance of firearms.  Most appellate opinions begin by reciting the history of the case up until it reached the appellate court, so that the reader will understand the issues to be decided by the court.  Instead, this opinion spends the first two entire pages recounting the horrors of several mass shootings, thereby setting an emotional level of revulsion which the judges then use to justify Maryland's unconstitutional (in my opinion) overreaction.  The opinion then expends the next 80 pages in tortured logic and violation of several legal principles to reach the conclusion that the law is constitutional.

One such legal principal is that an appellate case should only be decided on the issue central to resolving the case.  In fact, everything else mentioned in the decision is called dicta, and has no precedential value.  The Koble majority tramples this rule in their rush to justify Maryland's law.  The District Court had decided that assault weapons were protected by the Second Amendment, but that they could nonetheless be prohibited because of the "substantial governmental interest" of the state in preventing mass shootings.  The Fourth Circuit could have, and should have, limited their review of the case to whether the Maryland ban met that legal standard.  Instead, they gratuitously spent half the opinion espousing their view that assault weapons are not even protected by the Second Amendment in the first place.

The famous Heller decision said that the District of Columbia could not prohibit the private ownership of handguns, because those guns were covered by the Second Amendment.  Heller went on to say that military weapons such as the fully-automatic M16 "and the like" are not covered by the Second Amendment.  The Koble majority seized on the words "and the like" to justify their dicta that semi-automatic "assault rifles" are "like" fully-automatic machine guns.  They said that because the semi-automatics share features with the machine guns (such as a pistol grip and a barrel shroud), they are like them, and can thusly be lawfully banned as being not covered by the Second Amendment.

This is judicial activism at its worst:  A court disregarding legal rules, focusing on sensationalism, and twisting logic to reach a pre-planned conclusion.  What can we do to prevent more of this sort of thing?  Get involved and stay involved.

Federal judges are suggested by their local senators and representatives to the president, who then makes a formal nomination.  They are then confirmed by the senate.  The appointment of trial and appellate judges tends to get lost in the day to day affairs of government, and no one really bothers to learn who is being nominated until it is too late.  We assume, often incorrectly, that because a nominee is labeled as a conservative, he/she has conservative views on every issue.  Not so.  We need to know specifically where they stand on the Second Amendment.  Every time.  And we need to demand that our senators confirm only those who have demonstrated a commitment to it.

"Eternal vigilance is the price of Liberty".