The Fourth Circuit Runs Roughshod over Heller and the Second Amendment

By Charles C. W. Cooke

Wednesday, February 22, 2017

Freed up by the Supreme Court’s ongoing reluctance to engage in depth with the Second Amendment, the Fourth Circuit has taken it upon itself to rewrite Heller en banc. 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.

What counts as “most useful in military service” under this rubric? Well . . . everything, theoretically. “Under the majority’s analysis,” the dissenters contend, “a settler’s musket, the only weapon he would likely own and bring to militia service, would be most useful in military service — undoubtedly a weapon of war — and therefore not protected by the Second Amendment.” Indeed, “the ‘most useful in military service’ rubric would remove nearly all firearms from Second Amendment protection as nearly all firearms can be useful in military service.” A standard semi-automatic handgun is plausibly “most useful in military service.” So, too, is a hunting rifle. So is a sword. Perhaps the Fourth Circuit would like to strip the constitutional protection from those weapons, too?

That, of course would be absurd — not only because it would render the Second Amendment meaningless as a check on state action, but because the Supreme Court has already delivered clear instructions to the contrary. In Caetano v. Massachusetts, which, recall, was decided per curiam, Justice Alito explained in no uncertain terms that “even a stun gun capable of only non-lethal force is suitable for military use,” but that this did not mean that stun guns could be banned. Alito sits on the Supreme Court, and was writing in concurrence with the other eight justices.

Perhaps the Fourth Circuit has forgotten where it sits in the pecking order. Or perhaps the Fourth’s majority is unfamiliar with Caetano. Certainly, its grasp of Heller is wanting. In pushing back against the majority’s newfangled test, the dissenters correctly note that “Heller in no way suggests that the military usefulness of a weapon disqualifies it from Second Amendment protection. That is the majority’s singular concoction.” Indeed it is. As for Heller’s “common use” and “dangerous and unusual” standards, both of those are thrown casually out the window. The evidence, notes Judge Traxler, leads one to the “unavoidable conclusion that popular semiautomatic rifles such as the AR-15 are commonly possessed by American citizens for lawful purposes within the meaning of Heller.” Moreover, the record “shows unequivocally that magazines with a capacity of greater than 10 rounds are commonly kept by American citizens, as there are more than 75 million such magazines owned by them in the United States.” But the majority doesn’t care about that, choosing to apply only the “military” standard that it has invented. Evidently, it does not matter to Judge King that the standard in Heller is “dangerous and unusual” [italics mine] — i.e. that commonly owned, “usual” weapons cannot be prohibited on the grounds that they are particularly lethal. Nor, apparently, is King concerned that the Court ruled in Caetano that “the relative dangerousness of a weapon is irrelevant when the weapon belongs to a class of arms commonly used for lawful purposes.” He and his colleagues had a conclusion to reach, and by gum were they going to get there.

This legal folly notwithstanding, the majority’s characterization of the AR-15 as “weapon of war” is flat-out wrong. First, the opinion suggests that because the AR looks like an M-16 (a weapon that is not widely owned by the citizenry), it counts as a military firearm. Then, perhaps anticipating the objection that the AR-15 has never been issued to a soldier in American military history, it makes a series of preposterous claims as to the weapon’s rate of fire, the sole purpose of which is to mislead readers into believing that the model shares more than an aesthetic relationship with the its automatic cousins. Semi-automatic rifles, Judge King suggests, can fire at a rate of between 300 and 500 rounds per minute — a capability that makes them “virtually indistinguishable” from a machine gun.

Judge Traxler’s dissent loses no time in taking this claim apart, as well it should:

The majority’s assertion might surprise the United States Army, which sets the maximum effective rates of M4- and M16-series rifles operating in semi-automatic mode at 45 to 65 rounds per minute — only about five rounds in five seconds (not 30 rounds as the majority believes). This is far slower than 150 to 200 rounds per minute that may effectively be fired by the same arms operating in fully automatic mode.

(Also surprised will be “some of the experts at the Bureau of Alcohol, Tobacco, Firearms and Explosives,” who have testified to the same effect before Congress.)

The legal problem here is obvious: If the AR-15 is unacceptably dangerous because it is semi-automatic, then so must be every other gun that fires once per pull of the trigger — including the handguns that were protected by Heller. “If the majority is correct,” writes Traxler, “that the semiautomatic AR-15’s rate of fire makes it a weapon of war outside the scope of the Second Amendment, then all semiautomatic firearms — including the vast majority of semiautomatic handguns — enjoy no constitutional protection since the rate of fire for any semiautomatic firearm is determined by how fast the shooter can squeeze the trigger.”

Indeed. And a further question must present itself. Since 1934, automatic weapons have been treated differently under the law in the United States. Why? If semi-automatics that are protected by Heller are practically identical to automatics — and if the “common use” standard is to be ignored as it has been here — shouldn’t the court be striking down the National Firearms Act? Words matter, especially in the law. “Common” can’t mean “unusual.” “And” can’t mean “or.” And parlor games can be played both ways: If we are to subject the plain terms of our precedents to the amateurish deliberations of motive-riven judges, there will be nothing to stop a different court from inverting the trick and striking down the NFA on the grounds that fully automatic weapons are so similar to semi-autos as to enjoy all the protections of “normal” civilian weapons.

Most worrying of all, the majority concludes its trail of destruction by playing preemptive games with the standard of review. Because it sets “assault weapons” outside of the Constitution’s remit, the majority never reaches the question of scrutiny. But it nevertheless wants us to know that it would have applied intermediate scrutiny, and that the law in question would have passed without difficulty. This is extraordinary. For a start, if the majority had decided that the Second Amendment applied, it would have been duty bound to apply strict scrutiny. As Judge Traxler notes, “once it is determined that a given weapon is covered by the Second Amendment, then obviously the in-home possession of that weapon for self-defense is core Second Amendment conduct and strict scrutiny must apply to a law that prohibits it.” From where, one might ask, did he get that idea? The answer: From United States v. Hosford. And which Circuit decided that case? The Fourth.

Not content simply to break with its own precedent, the majority then has the gall to justify its departure as if Heller had never been issued. How else to account for the submission that Maryland’s prohibition on “assault weapons” does not restrict the “core lawful purpose” of the Second Amendment because the state hasn’t touched other sorts of weapons — an argument that was explicitly rejected in Heller? It would be one thing for the court to argue that a law might pass strict scrutiny; that, while unlikely to be vindicated, is at least a defensible position. But to deprive the plaintiffs of that chance, and then to justify that denial using reasoning that defies seminal Supreme Court precedent, is something else entirely.

Were this a First Amendment case, those vexed by its outcome could merely wait for the Supreme Court to step in and reverse it. In this instance, however, such relief seems unlikely — at least in the foreseeable future. For whatever reason, the Court has been unwilling to take Second Amendment cases of late, a reluctance that has been caustically criticized by Justices Thomas and Scalia, both of whom have accused the judicial branch of treating the keeping and bearing of arms as a “second-class” right. One can only hope that Thomas is on the phone with the Fourth Circuit today. “That was a complaint,” he might say, “not an invitation.”