B.L.U.F. Does bad law live on? What happens to all the opinions issued by circuit courts on Second Amendment cases before Bruen.
On June 23, 2022, a year ago, the Supreme Court issued the Bruen decision. The Bruen reaffirmed Heller. The Second Amendment is an individual right, it is not a second class right. The way to properly adjudicate a Second Amendment challenge is
we hold that when the Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct. To justify its regulation, the government may not simply posit that the regulation promotes an important interest. Rather, the government must demonstrate that the regulation is consistent with this Nation’s historical tradition of firearm regulation.—New York State Rifle & Pistol Assn., Inc. V. Bruen, 142 S.Ct. 2111, ¶ 1 (U.S. 2022) This fantastic opinion opened the gates to regaining our Second Amendment protect rights.
The court then proceeded to GVR four other Second Amendment cases. One of those cases was in the 4th Circuit Court.
The Forth Circuit Court has not found an infringement that they couldn’t find a reason to find constitutional. They are horrible on Second Amendment rights. While the Ninth Circuit gets all the news, the Fourth is actually worse.
—Kolbe v. Hogan, 849 F. 3d 114 (4th Cir. 2017)
There are fourteen judges on the panel. Only one of them found that there was a constitutionally protected right to keep and bear modern semi-automatic rifles. Thank you, Judge Traxler.
Why is this case important?
The United States jurisprudence is based on common law. Once a law is passed, it is up to the courts to apply that law in a common way across all instances. Since the laws as written often have edge cases or might just be poorly written, the courts are required to say what happens in those edge cases or badly worded situations.
Consider the following. A government employee is granted a security clearance. They gain access to some classified material. Because they are pressured to complete some work regarding that classified material, they copy that material on to a thumb drive and take it home with them.
At home, they copy the documents on to their home server, stored in the spare bedroom. At a later time, they leave government employment. In the process of debriefing, they mention that they had a copy of a paper on their computer that they would remove.
They have just admitted to a crime. There is an investigation and they go to jail.
Any government employee who did a similar action, take classified material out of a secure location and put it on an insecure home server, would be guilty of the same crime and would be punished in the same way.
Common law is what makes this possible. Every court in the land has access to the law, as written, to the court cases involving that law, and what the holdings were for each of those cases. The courts then apply the law in a common way across all people.
This is true of the G.S.-5 who was charged with editing her bosses classified memo as to the S.E.S. former Secretary of State. The law is applied in a common way across everybody.
Kolbe is one of the fundamental pieces of case law that controls how Second Amendment challenges are adjudicated within the 4th Circuit Court. It is also used in other Circuits, though it is not binding on other circuits. Many cases on the East Coast were resolved based on Kolbe.
—id. at 130
The 4th Circuit explicitly states that “assault weapons” and “Large Capacity Magazines” are not protected arms. Even if they were, analysis of how much the “core Second Amendment right of self-defense is impacted” that only intermediate scrutiny is required in analyzing the challenge.
Under Bruen the Supreme Court made it clear
when the Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct —Bruen, 142 S.Ct. 2111. This is from Heller. The issue comes when the inferior courts are looking for a way to avoid the correct results.
—Kolbe v. Hogan, 849 F. 3d at 121
That is an interesting reading of Heller, let’s see what Heller actually said in regard to “M-16 rifles and the like”.
—District of Columbia v. Heller, 467 U.S. 837, 2817 (2008)
My English language skills maybe a little weak, but I do not see anything in the text from Heller that
explicitly excluded weapons most useful in military service.
It must be like the dog whistles that every Democrat can hear in the words of a conservative, but which no conservative actually hears. Those Democrats must be real bitches.
When a court opinion starts with emotional blackmail, disguised as “history” or “context”, you are sure to find that the court is twisting words and meaning to get the result they want.
Compare these paragraphs:
—United States v. Rahimi, 61 F. 4th 443, 448 (5th Cir. 2023)
—Bruen, 142 S.Ct. 2111
Short and powerful statements.
The Bruen opening paragraphs were a quick summary of the NY State permitting law and a statement of whom the petitioners (good guys) are. Not the opening paragraph, but paragraph 3.
Here is how the emotional blackmail of Kolbe begins:
Both before and after Newtown, similar military-style rifles and detachable magazines have been used to perpetrate mass shootings in places whose names have become synonymous with the slaughters that occurred there — like Aurora, Colorado (twelve killed and at least fifty-eight wounded in July 2012 in a movie theater), and San Bernardino, California (fourteen killed and more than twenty wounded in December 2015 at a holiday party). In the early morning hours of June 12, 2016, a gunman killed forty-nine and injured fifty-three at the Pulse nightclub in Orlando, Florida, making it the site of this country’s deadliest mass shooting yet. According to news reports, the Orlando gunman used a Sig Sauer MCX, a semiautomatic rifle that was developed at the request of our Army’s special forces and is known in some military circles as the “Black Mamba.” Other massacres have been carried out with handguns equipped with magazines holding more than ten rounds, including those at Virginia Tech (thirty-two killed and at least seventeen wounded in April 2007) and Fort Hood, Texas (thirteen killed and more than thirty wounded in November 2009), …
—Kolbe v. Hogan, 849 F. 3d at 121
Kolbe was a case decided on the results wanted rather than the law. The Court took a small passage from the Heller decision, rearranged the words out of order to obfuscate the context. Then they balanced our rights away.
This is nearly the same circuit court that heard Bianchi v. Frosh in December 2022. According to Mark Smith, we are likely to get a 2-1 favorable opinion out of the three judge panel. It is highly likely that the state will immediately request an en banc hearing.
The people of the Fourth Circuit will be lucky if there is a final opinion issued in the case in the next three years.
Our best hope is that we will see some of the other cases regarding AW/LCM ban’s get to the Supreme Court, which will make it that much more difficult for the infringing courts to keep infringing.