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.

Affirmed by published opinion. Judge King wrote the opinion for the en banc majority, in which Chief Judge Gregory and Judges Wilkinson, Motz, Keenan, Wynn, Floyd, Thacker, and Harris joined in full; Judge Diaz joined in part as to the Second Amendment claims and joined as to the Fourteenth Amendment equal protection and due process claims; and Judges Niemeyer, Shedd, and Agee joined as to the Fourteenth Amendment claims only. Judge Wilkinson wrote a concurring opinion, in which Judge Wynn joined. Judge Diaz wrote an opinion concurring in part and concurring in the judgment as to the Second Amendment claims. Judge Traxler wrote a dissenting opinion as to the Second Amendment claims, in which Judges Niemeyer, Shedd, and Agee joined. Judge Traxler also wrote an opinion dissenting as to the Fourteenth Amendment equal protection claim and concurring in the judgment as to the Fourteenth Amendment due process claim.
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.

The Question

We begin with the plaintiffs’ claims that the FSA’s assault weapons ban and its prohibition against large-capacity magazines contravene the Second Amendment. According to the plaintiffs, they are entitled to summary judgment on the simple premise that the banned assault weapons and large-capacity magazines are protected by the Second Amendment and, thus, the FSA is unconstitutional per se. We conclude, to the contrary, that the banned assault weapons and large-capacity magazines are not constitutionally protected arms. Even assuming the Second Amendment reaches those weapons and magazines, however, the FSA is subject to — and readily survives — the intermediate scrutiny standard of review. Consequently, as to the Second Amendment claims, we must affirm the district court’s award of summary judgment to the State.
id. at 130

emphasis added.

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 conductBruen, 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.

As explained below, we are satisfied to affirm the district court’s judgment, in large part adopting the Opinion’s cogent reasoning as to why the FSA contravenes neither the Second Amendment nor the Fourteenth. We diverge from the district court on one notable point: We conclude — contrary to the now-vacated decision of our prior panel — that the banned assault weapons and large-capacity magazines are not protected by the Second Amendment. That is, we are convinced that the banned assault weapons and large-capacity magazines are among those arms that are “like” “M-16 rifles” — “weapons that are most useful in military service” — which the Heller Court singled out as being beyond the Second Amendment’s reach. See 554 U.S. at 627, 128 S.Ct. 2783 (rejecting the notion that the Second Amendment safeguards “M-16 rifles and the like”). Put simply, we have no power to extend Second Amendment protection to the weapons of war that the Heller decision explicitly excluded from such coverage. Nevertheless, we also find it prudent to rule that — even if the banned assault weapons and large-capacity magazines are somehow entitled to Second Amendment protection — the district court properly subjected the FSA to intermediate scrutiny and correctly upheld it as constitutional under that standard of review.
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”.

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. But as we have said, the conception of the militia at the time of the Second Amendment’s ratification was the body of all citizens capable of military service, who would bring the sorts of lawful weapons that they possessed at home to militia duty. It may well be true today that a militia, to be as effective as militias in the 18th century, would require sophisticated arms that are highly unusual in society at large. Indeed, it may be true that no amount of small arms could be useful against modern-day bombers and tanks. But the fact that modern developments have limited the degree of fit between the prefatory clause and the protected right cannot change our interpretation of the right.
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.

Emotional Blackmail

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:

The question presented in this case is not whether prohibiting the possession of firearms by someone subject to a domestic violence restraining order is a laudable policy goal. The question is whether 18 U.S.C. § 922(g)(8), a specific statute that does so, is constitutional under the Second Amendment of the United States Constitution. In the light of N.Y. State Rifle & Pistol Ass’n, Inc. v. Bruen, ___ U.S. ___, 142 S. Ct. 2111, 213 L.Ed.2d 387 (2022), it is not.
United States v. Rahimi, 61 F. 4th 443, 448 (5th Cir. 2023)
Since Heller and McDonald, the Courts of Appeals have developed a “two-step” framework for analyzing Second Amendment challenges that combines history with means-end scrutiny. The Court rejects that two-part approach as having one step too many. Step one is broadly consistent with Heller, which demands a test rooted in the Second Amendment’s text, as informed by history. But Heller and McDonald do not support a second step that applies means-end scrutiny in the Second Amendment context. Heller’s methodology centered on constitutional text and history. It did not invoke any means-end test such as strict or intermediate scrutiny, and it expressly rejected any interest-balancing inquiry akin to intermediate scrutiny. Pp. 9–15.
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:

On the morning of December 14, 2012, in Newtown, Connecticut, a gunman used an AR-15-type Bushmaster rifle and detachable thirty-round magazines to murder twenty first-graders and six adults in the Sandy Hook Elementary School. Two additional adults were injured by gunfire, and just twelve children in the two targeted classrooms were not shot. Nine terrified children ran from one of the classrooms when the gunman paused to reload, while two youngsters successfully hid in a restroom. Another child was the other classroom’s sole survivor. In all, the gunman fired at least 155 rounds of ammunition within five minutes, shooting each of his victims multiple times.

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.


District of Columbia v. Heller, 467 U.S. 837 (2008)
Kolbe v. Hogan, 849 F. 3d 114 (4th Cir. 2017)
New York State Rifle & Pistol Assn., Inc. V. Bruen, 142 S.Ct. 2111 (U.S. 2022)
United States v. Rahimi, 61 F. 4th 443 (5th Cir. 2023)
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