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Keep the slaughter going, and above all keep the gun sales going. 'merica, yeah! We're World Champion Gun Violence
ThinkProgress
http://thinkprogress.org/justice/201...ries-in-years/
Gun activists just had a very good day in court.
On Thursday, a divided panel of the United States Court of Appeals for the Fourth Circuit struck down Maryland’s ban on assault rifles and high-capacity magazines. In so doing, they potentially put this case on the fast track to the Supreme Court. They also risk setting off a literal arms race where gun makers race to sell as many exotic kinds of weapons as possible in order to expand the scope of the Second Amendment.
The case primarily turns on a few lines in the Supreme Court’s 2008 decision in District of Columbia v. er, its first decision holding that the Second Amendment protects an individual right to bear arms. Though er expanded the scope of that amendment significantly — effectively creating a whole new area of cons utional law more than two centuries after the Bill of Rights was ratified — it also held that the Cons ution does not protect “a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.” The Court endorsed “the historical tradition of prohibiting the carrying of ‘dangerous and unusual weapons.’” And it also suggested that “weapons that are most useful in military service—M-16 rifles and the like—may be banned.”
Chief Judge William Traxler’s majority opinion in Kolbe v. Hogan hinges on his assertion that the weapons banned by Maryland’s law are not “unusual,” and therefore are shielded by er. “The list of prohibited weapons includes the semi-automatic rifle models most popular by far among American citizens,” Traxler writes, “the AR-15 ‘and all imitations’ and the semi-automatic AK-47 ‘in all forms.’” According to Traxler, “more than 8 million AR- and AK-platform semi automatic rifles alone were manufactured in or imported into the United States” between 1990 and 2012.
That may be true. Yet, as Judge Robert King points out in dissent, it’s also not the entire story. “The banned assault rifles and shotguns cons ute no more than 3% of the civilian gun stock,” King writes, “and ownership of such weapons is concentrated in less than 1% of the U.S. population.”
Such guns, moreover, are very similar to military-grade weapons that er suggests may be banned. “The AR-15, functions almost identically to the military’s fully automatic M16,” King explains. “The sole difference between the M16 and the AR-15 is that the M16 is capable of automatic fire while the AR-15 is semiautomatic.” Yet, “that difference is slight, in that automatic firing of all the ammunition in a thirty-round magazine takes two seconds, whereas a semiautomatic rifle can empty the same magazine in about five seconds. Moreover, soldiers and police officers are often advised to choose semiautomatic fire, because it is more accurate and lethal than automatic fire in many combat and law enforcement situations.”
Judge King adds that “Criminals armed with the banned assault weapons possess a ‘military-style advantage’ in firefights with law enforcement, as such weapons ‘allow criminals to effectively engage law enforcement officers from great distances (far beyond distances usually involved in civilian self-defense scenarios),’ ‘are more effective than handguns against soft body armor,’ and ‘offer the capacity to fire dozens of highly lethal rounds without having to change magazines.’”
The fact that an appeals court panel backed Traxler’s approach and not King’s is especially important because it creates what is known as a “circuit split” within the federal judiciary. As Traxler acknowledges, at least two other federal appeals court have upheld similar bans on assault rifles, and the Supreme Court is much more likely to take a case when there is a split among the lower appeals courts that needs to be resolved.
Last December, moreover, the Supreme Court declined to hear a similar case over the dissent of Justices Antonin Scalia and Clarence Thomas. Now that a circuit split has opened up, these two justices will bring significantly more ammunition to the table when they try to convince their colleagues to take up this issue.
And should Scalia and Thomas’ view ultimately prevail in the Supreme Court, that could seriously undermine the government’s ability to protect the public from especially dangerous weapons. As ThinkProgress previously explained,
Suppose, for example, that an unusually conservative Congress is elected in 2016, and that Congress repeals the ban on machine guns. All that would be necessary under Thomas’s rule to render such a ban permanently uncons utional would be for a large number of gun owners to obtain machine guns and not use them in the commission of a crime. The NRA and gun manufacturers, moreover, would have an obvious interest in ensuring that these guns become commonly held as quickly as possible — as they would be in a literal arms race to distribute the guns widely before Congress can reinstate the ban.It’s worth noting that the Fourth Circuit is a left-leaning court — two-thirds of its active members were appointed by Democratic presidents (although one of the Democratic appointees is Traxler). So it is possible that the full appeals court will decide to take this case up and eliminate the circuit split in the process. Nevertheless, the Roberts Court has taken political charged cases in the past, even after a circuit split ceased to be. So Judge Traxler’s views in Kolbe could easily be imposed on the entire nation by a majority of the Supreme Court.
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And an update on the Hollis vs Lynch machinegun case from two of the lawyers involved for those interested. Oral arguments first week of April, it really looks like they'll win the case and the registry will be opened.
http://www.ar15.com/forums/t_1_5/168....html&page=181
http://media.wix.com/ugd/c601ae_fb21...6e004a299b.pdf
February 8, 2016
Mr. Lyle W. Cayce, Clerk
U.S. Court of Appeals for the Fifth Circuit
600 S. Maestri Place
New Orleans, LA 70130-3408
Re: JAY AUBREY ISAAC HOLLIS v. LORETTA E. LYNCH, et al.; No. 15-10803; Citation of Supplemental Authorities pursuant to Rule 28(j) of the Federal Rules of Appellate Procedure
Dear Mr. Cayce:
Mr. Hollis submits this supplemental letter under Fed. R. App. P. 28(j) and 5th Cir. R. 28.4 regarding additional new authority.
In a published opinion on February 4, 2016, the Fourth Circuit in Kolbe v. Hogan, 14-1945, 2016 WL 425829 (4th Cir. Feb. 4, 2016) held that an AR-15 is a protected arm and that a complete ban on that arm is subject to strict scrutiny. Kolbe also stands for the proposition that once established that an arm is protected by the Second Amendment then strict scrutiny applies. See Kolbe, Sections III.A and III.B. Mr. Hollis demonstrated that M16s are protected under the Second Amendment. As such, if the Court decides against a categorical approach to the machinegun ban, then strict scrutiny should apply. See Appellant’s Opening Brief at pp. 32-39.
Additionally, Kolbe discusses the "dangerous and unusual" doctrine as discussed on pages 20-26 of Appellant’s Opening Brief. It is obvious that the back and forth between the majority and dissent highlights why it is necessary for this Court to analyze the phrase dangerous and unusual because the current interpretation suffers from a number of logical flaws. The majority held that "… er refers to ‘dangerous’ and ‘unusual’ conjunctively, suggesting that even a dangerous weapon may enjoy cons utional protection if it is widely employed for lawful purposes…" Id. at *9-10.
The dissent disagreed and stated, "As the panel majority would have it, since all firearms are dangerous, the dangerous-and-unusual standard is really only concerned with whether a given firearm is unusual…" Id. at *26. This disconnect as to what the phrase truly means is evidenced by the disagreement between the majority and dissent
Case: 15-10803 Do ent: 00513373452 Page: 1 Date Filed: 02/08/2016
in Kolbe. As such, Appellant urges this Court to make an independent inquiry into the meaning of the phrase dangerous and unusual.
Yours very truly,
/s/ Stephen D. Stamboulieh
Stephen D. Stamboulieh
cc: All counsel of record (by the Court’s electronic filing system)
Case: 15-10803 Do ent: 00513373452 Page: 2 Date Filed: 02/08/2016
Keep the slaughter going, and above all keep the gun sales going. 'merica, yeah! We're World Champion Gun Violence
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