Another Court Says AR-15s Aren’t Covered by the Second Amendment

Judge Nominations Matter

By Jeff Knox

(April 9, 2018) An egregious ruling out of a Federal Court in Massachusetts, is just the latest example of why judicial appointments are so critically important.  The fact that the ruling comes at a moment when anti-rights Democrats in the U.S. Senate are praising a Donald Trump nominee to the Federal Court of Appeals for the 9th Circuit, while Republican defenders of the Bill of Rights are criticizing Trump’s nominee over First and Second Amendment concerns.

The Massachusetts ruling came in a case filed by local rights advocates and the Gun Owners Action League, against the Massachusetts Attorney General Maura Healey.  GOAL sued Healey after she arbitrarily redefined the state’s “assault weapons” ban by including all guns with actions or internal parts that are interchangeable or similar to those of specifically banned firearms.  The Massachusetts ban, which was originally a mirror of the 1994 Clinton Gun Ban, had been in place for almost 20 years when Healey decided to change the rules and retroactively add thousands of heretofore legal rifles to the banned list, making criminals of thousands of law-abiding gun owners.

The Massachusetts Legislature enacted the state law in 1998, using the same definitions and terminology used in the federal ban, including the “grandfather clause, which exempted guns owned prior to the September, 1994 from the restrictions.  By expanding the definition in 2016 to include firearms that are mechanically similar to those that were banned, Healey retroactively criminalized sale, purchase, and possession of all of the thousands of rifles and magazines that meet the new definitions, but had been legally acquired since the 1994 ban.  Those rifles and magazines are now contraband, and the individuals who possess them are felons – if this legal interpretation is allowed to stand.

GOAL and fellow plaintiffs sued to overturn the original law, and particularly block the implementation of the new definitions.  They contended that the original ban is unconstitutional under the Second Amendment because it bans an entire class of firearms which are commonly owned and used for lawful purposes.  They further contended that the new, expanded definitions were unconstitutional because the terminology used is unconstitutionally vague and confusing, and violates constitutional protections against ex post facto laws.

In the Federal District Court for the State of Massachusetts, Judge William Young, a Reagan appointee, declared that “The AR-15 and its analogs, along with large capacity magazines, are simply not weapons within the original meaning of the individual constitutional right to bear arms.

To support that outrageous claim, Judge Young invoked the Supreme Court’s Heller decision, and the words of Justice Antonin Scalia, claiming that in Heller, Scalia specifically stated that the weapons most useful to service in a militia were not protected by the Second Amendment.

This is taken from a bit of dicta included in the Heller opinion, in which Justice Scalia was attempting to head-off future arguments based on the Court’s 1939 Miller decision.  In that decision the Court concluded that they could not say that a sawed-off shotgun was protected by the Second Amendment, because they had no knowledge of such a weapon being useful in militia service.  Scalia offered a hypothetical argument saying; “It may be objected that if weapons that are most useful in military service—M-16 rifles and the like—may be banned, then the Second Amendment right is completely detached from the prefatory clause.”  He’s suggesting that someone could use Miller to argue that restrictions on full-auto weapons are unconstitutional because those are the weapons “that are most useful in military service.”  He then goes on to answer that hypothetical challenge by arguing that the Miller decision hinged not on whether the weapon was militarily useful, but rather whether it was something that was commonly possessed for lawful purposes by members of the public.  He concluded that since full-auto’s are not very common in civilian hands, restrictions on them could probably be upheld as constitutional.

That’s a pretty thin argument, since those very restrictions are the only reason full-auto weapons like the M16 are not much more commonly owned, but to take that weak argument from Justice Scalia, and willfully distort it to claim that he was saying that guns that look like M16s aren’t protected by the Second Amendment, specifically because they are most useful in military service, is beyond outrageous, it’s downright treasonous.

This outrageous distortion didn’t originate with Judge Young however.  It was originally put forward last year by a panel of the 4th Circuit Court of Appeals in the case Kolbe v. Hogan, which challenged Maryland’s draconian ban on guns that look military.  That decision was appealed to the Supreme Court, and the cowardly justices refused to grant it a hearing, allowing the egregious ruling to stand.

Sam Adams would be calling for all of these judges to be defrocked and ridden out of town on a rail.  This is not a minor quibble over a legal technicality, but rather an intentional distortion to effect a desired outcome.  No honest reading of Justice Scalia’s opinion in Heller could arrive at the conclusions that these judges reached, and it is even more shameful that the justices of the Supreme Court of the United States have foregone their sworn duty, and allowed such conclusions to stand.

These are the sorts of abuses of power that lead insurrection and rebellion, and they must not be tolerated.