Fourth Circuit Infringes on Heller

Those of us who believe there is no asterisk following the Second Amendment to the U.S. Constitution were heartened when the U.S. Supreme Court ruled in a pair of court decisions that the right to bear arms was not only an individual right but applied to the entirety of the United States, As Investors Business Daily editorialized in 2014 after a U.S. District Court overthrew Chicago’s ban on gun shops within city limits:

In a 5-4 decision in 2008, Heller v. District of Columbia, written by Justice Antonin Scalia, the Supreme Court overturned D.C.'s draconian gun law. Similar to Chicago's law, D.C.'s law barred private ownership of handguns, but the Supreme Court reaffirmed that the right to bear arms was indeed an individual constitutional right.

On the heels of Heller, however, a three-judge panel of the 7th Circuit Court of Appeals, led by Judge Frank Easterbrook, rejected subsequent suits brought by the National Rifle Association against the city of Chicago and its suburb of Oak Park, Ill., on the grounds that Heller applied only to the District of Columbia and not to the states and their municipalities.

That nonsense was straightened out when Otis McDonald, a 76-year-old Army veteran who lived in a high-crime area of Chicago, asserted that the Second Amendment to the U.S. Constitution he fought to protect gives him the right to bear arms to protect himself and his wife, just as he once protected his country.

The U.S. Supreme Court agreed with him, saying the right to keep and bear arms was not only an individual right, but also a national one.

That settled that, or so we thought. Now along comes the Fourth Circuit, asterisk in hand, to define what the Founding Fathers did not, namely exactly what kind of arms we are entitled to bear, as well as what kind and how much ammunition we are allowed by the robed gods to lock and load. As Charles C. W. Cooke notes in National Review, the Fourth Circuit ruling guts Heller ad imposes a nonsensical restriction on the right to bear arms the Framers did not intend::

In a 10–4 decision, issued yesterday afternoon, the court upheld Maryland’s ban on both “assault weapons” and “high capacity magazines.” By so doing, it deprived the people of Maryland, the Carolinas, and the Virginias of the core protections to which the Constitution entitles them.

As Judge Traxler’s dissent pointedly establishes, the majority achieved this transformation by contriving “a heretofore unknown ‘test,’ which is whether the firearm in question is ‘most useful in military service.’” In effect, this “test” is designed to permit judges to determine that any weapon they might dislike is unprotected by the Second Amendment and can therefore be prohibited with impunity. Forget that Heller contains its own explicit tests. Forget the “common use” standard. Forget “dangerous and unusual.” There’s a new kid in town, and he’s coming for your rifles.

Forget as well the Second Amendment was written in a time of war when muskets were the assault weapons of the day. Under the Militia Act of 1792, every able-bodied male was required to own a musket:

Like most post-war periods, the years following the end of the American Revolution saw our small standing army reduced to a skeleton force. With the British still in control of Canada, the French in control of the area that someday would be defined as the Louisiana Purchase and Europe in constant turmoil, the Congress passed the 1792 Militia Act -- “an Act more effectively to provide for the National Defense, by establishing a Uniform Militia through the United States.” The Act required white male citizens between the ages of 18-45 become members of their state militias and that every militiaman was to “provide himself with a good musket or firelock” within 6 months after passage.

Before gun control zealots shout “aha!” remember that Heller established that the right to bear arms was an individual right, not a privilege granted by the state. Our Founding Fathers made clear what they considered a militia to consist of and what the purpose for bearing arms was self-defense against thugs and tyrants, not to hunt deer: The famous ride by Paul Revere was not to alert hunters that deer season was now open, it was to notify free men that it was time for gun owners to grab their muskets and finally free themselves to fight tyranny. As Investor’s Business Daily has noted:

Which brings us to why we have a Second Amendment. No, it is not to protect the right of states to have their own militias. George Mason, called the father of the Bill of Rights, said, "What is the militia? It is the whole people. To disarm the people is the best and most effectual way to enslave them."

James Madison, called the father of the Constitution, said of tyrants, "(They were) afraid to trust the people with arms," and lauded "the advantage of being armed, which Americans possess over the people of almost every other nation."

The "historical reality of the Second Amendment's protection of the right to keep and bear arms is not that it protects the right to shoot deer," observes Judge Andrew Napolitano, a constitutional scholar and Fox News contributor. "It protects the right to shoot tyrants, and it protects the right to shoot at them effectively, thus, with the same instruments they would use upon us."

The Second Amendment, it has been said, was written to protect the other nine in the Bill of Rights, and was an acknowledging of the threat from tyrants and other domestic enemies such as the criminals and the crazies that would otherwise roam unchallenged among us. As Thomas Jefferson said in a letter to James Madison, dated December 20, 1787:

"What country can preserve its liberties if their rulers are not warned from time to time that their people preserve the spirit of resistance. Let them take arms."

In addition to the threat posed by tyrannical governments, Thomas Jefferson was among the first to embrace the concept that the only way to stop a bad guy with a gun is a good guy with a gun:

"The laws that forbid the carrying of arms are laws of such a nature. They disarm only those who are neither inclined nor determined to commit crimes.... Such laws make things worse for the assaulted and better for the assailants; they serve rather to encourage than to prevent homicides, for an unarmed man may be attacked with greater confidence than an armed man."

The wisdom of Thomas Jefferson apparently escapes the Fourth Circuit. The Second Amendment was written, not to protect hunters, but to protect citizens from tyrannical governments in time of war and crazies in time of peace. The Fourth Circuit can rewrite the Second Amendment when it can pry it from our cold, dead hands.

Daniel John Sobieski is a free lance writer whose pieces have appeared in Investor’s Business Daily, Human Events, Reason Magazine and the Chicago Sun-Times among other publications.             

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