The Conspiracy To Dismember Heller

… the 4th Circuit Court of Appeals, in February of this year, took it upon itself to strike a serious blow against D.C. v. Heller, and thereby to undermine the Second Amendment at the root. Asked to examine a Maryland statute that prohibits the purchase of so-called “assault weapons” and limits to 10 rounds the size of purchasable magazines, the court used the opportunity to gut the right to keep and bear arms along much of the East Coast.

The consequences of the ruling cannot be overstated. In essence, the 4th Circuit has contrived a brand-new constitutional “test,” the practical effect of which is the removal of Second Amendment protection from any firearm that a judge happens not to like. In Heller, the Supreme Court took three related positions: First, that firearms “in common use” may not be banned; second, that while “dangerous” arms may be regulated, only those that are “unusual” in addition are eligible for prohibition; and third, that a government may not ban certain types of guns on the understanding that other types remain available. In a follow-up case, Caetano v. Massachusetts, Justice Samuel Alito stated in his concurrence that “the relative dangerousness of a weapon is irrelevant when the weapon belongs to a class of arms commonly used for lawful purposes.” Disgracefully, the 4th Circuit ignored all these prescriptions—which it was duty-bound to follow—electing instead to devise its own rule: that if a weapon is “most useful in military service,” it enjoys no constitutional protection. In so doing, the court thumbed its nose at its superiors and quietly rewrote the law for millions of Americans.

The problem with this standard is self-evident, for there is no weapon on Earth that could be placed outside of this description. Longswords are “most useful” within a military context, as are handguns, shotguns, crossbows and lever-actions. Your grandfather’s hunting rifle would have been handy at Normandy, just as his father’s trusty pocketknife would have been crucial in the Ardennes.

When the Second Amendment was passed, most Americans had just one firearm in their possession—generally, a musket or smoothbore rifle—and it doubled as their personal and their muster weapon. By the 4th Circuit’s terms, the government could have taken these weapons away on the grounds that they were “most useful in military service”—which, of course, they were.

That, naturally, is a farcical and historically illiterate idea, for there would be no purpose in a protection that could be so easily circumvented. But, alas, farce was the preferred order of the day. Not satisfied merely to assert incorrectly that “assault weapons” provide a unique danger to the Republic, the court elected to embarrass itself on both the facts and on the law. In the course of his opinion, Judge Robert King claimed that the AR-15 was “virtually indistinguishable” from the M-16 because it a) looks similar; b) can play host to some of the same aesthetic modifications; and c) can fire between 300 and 500 rounds per minute—or 30 rounds every 5 seconds. The first two claims are so shallow as to be worth ignoring entirely; the lattermost point, which formed the basis of the court’s argument, is flatly incorrect. As both the ATF and the U.S. Army note, the AR-15 can plausibly fire at around 45 to 65 rounds per minute, depending on who is pulling the trigger. Where, one wonders, was the court getting its information?

To recap, then: Under the 4th Circuit’s hallucinatory regime, non-military weapons are military weapons; commonly owned firearms aren’t commonly owned; the “unusual and dangerous” standard is “unusual or dangerous”; and a semi-automatic rifle is, by some unknown and powerful magic, functionally identical to a machine gun. One can almost see Alice disappearing down the rabbit hole.

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