Help Keep ALIVE!!

  It's been 23 months since We've asked for Donations, Now is the time to come to the aid of YOUR web site

Requested! donations via Mail or -use Paypal
If we can not come up with the funds for the site, 12160 will be no more.
Please find it within you to help us out and meet our goal in the next couple of months. Any donation, no matter what amount will be greatly appreciated.

If The Supreme Court Takes This Gun Control Case, Its Decision Will Be Huge

If The Supreme Court Takes This Gun Control Case, Its Decision Will...

When the Supreme Court meets today to discuss pending petitions for review, the justices’ conference calendar will include a pivotal Second Amendment case.

When the Supreme Court meets later today to discuss pending petitions for review, the justices’ conference calendar will include a pivotal Second Amendment case: Kolbe v. Hogan.

In Kolbe v. Hogan, the full Fourth Circuit Court of Appeals upheld Maryland’s ban of semiautomatic rifles and detachable ammunition magazines that exceed ten rounds. In doing so, the Fourth Circuit became the fourth federal appellate court to uphold the constitutionality of a ban on “assault” weapons and large-capacity magazines. The Second, Seventh, and District of Columbia circuits have previously upheld similar bans, and, to date, the Supreme Court has refused to enter the fray.

But Kolbe v. Hogan will likely force the justices’ hand. Here’s why.

Three Different Standards for Constitutionality

While the four circuit courts that have considered the constitutionality of bans on “assault” weapons and large-capacity magazines have all upheld the gun-control legislation, in doing so they have adopted three different standards for judging the constitutionality of the laws under the Second Amendment and the Supreme Court’s Heller decision.

The Second Circuit and the D.C. Circuit both concluded Second Amendment protections extend to semiautomatic rifles and large-capacity magazines. But, because banning such weapons and ammunition does “not seriously impact a person’s ability to defend himself in the home,” the appellate courts held that the appropriate question for them to consider is whether the government established a substantial relationship between the prohibition and an important state interest.

In the law, the “substantial relationship” with “an important state interest” standard is called “intermediate scrutiny.” The Second Circuit and D.C. Circuit then both concluded that the laws at issue satisfied intermediate scrutiny and thus upheld the bans.

Conversely, the Seventh Circuit in Friedman v. City of Highland Park crafted a different test, reasoning that, “instead of trying to decide what ‘level’ of scrutiny applies, and how it works,” it is more suitable “to ask whether a regulation bans weapons that were common at the time of ratification or those that have some reasonable relationship to the preservation or efficiency of a well-regulated militia, and whether law-abiding citizens retain adequate means of self-defense.” Applying that standard, in a split 2-1 decision, the Seventh Circuit upheld the Highland Park ban on semiautomatic weapons and large-capacity magazines.

Semiautomatics Are Bannable, Like Fully Automatics?

But rather than follow the lead of its sister circuits, the en banc court in Kolbe forged a third path: The majority opinion concluded “that the banned assault weapons and large-capacity magazines are not constitutionally protected arms.”

The Fourth Circuit reached this conclusion by first noting that the Heller Supreme Court recognized that the Second Amendment guarantee “extends only to certain types of weapons” and that “weapons that are most useful in military service – M-16 rifles and the like – may be banned” without infringing Second Amendment rights. The majority then concluded that the AR-15 and semiautomatic AK47 and other banned “assault” weapons and large-capacity magazines are “like” M-16 rifles, and therefore “they are among those arms that the Second Amendment does not shield.”

You don’t need to be well-versed in the intricacies of firearms to gasp at the Fourth Circuit’s equating of semi-automatic rifles with the fully-automatic M-16. This bizarre reasoning alone would justify the Supreme Court summarily vacating the Kolbe decision. In addition, as the brutal four-judge dissent in Kolbe made clear, the Fourth Circuit’s majority opinion is strikingly at odds with the Supreme Court’s decision in Heller.

Heller established as the dispositive question “whether the law bans types of firearms commonly used for a lawful purpose.” With AR-15 and AK-47-styled rifles accounting for approximately 20 percent of gun sales in the United States, those “assault” weapons definitely qualify as “commonly used” within the meaning of Heller.

Thomas: ‘Our Second Amendment Rights Are at Stake’

Nonetheless, as noted above, the Supreme Court has so far refused to clarify whether semiautomatic weapon and large-capacity ammunition bans withstand the scrutiny of Heller. The court’s hands-off approach earned justices the wrath of Justice Thomas, with whom Justice Scalia joined, in an opinion dissenting from the Supreme Court’s refusal to hear an appeal of the Friedman case out of the Seventh Circuit:

The Court’s refusal to review a decision that flouts two of our Second Amendment precedents stands in marked contrast to the Court’s willingness to summarily reverse courts that disregard our other constitutional decisions. There is no basis for a different result when our Second Amendment precedents are at stake. I would grant certiorari to prevent the Seventh Circuit from relegating the Second Amendment to a second-class right.

The Kolbe decision provides Justice Thomas another vehicle in which to push the Supreme Court to correct lower courts’ misunderstanding of the Second Amendment. Even if the other justices prefer to avoid the issue, by adopting yet a third standard for judging laws impacting the right to keep and bear arms, the Fourth Circuit has likely made a hands-off approach impossible: The Supreme Court will need to grant the petition for review to resolve the split in the circuits concerning the appropriate standard and to clarify the governing law.

But should the Supreme Court grant the petition for review, as I predict, gun-rights activists should temper any premature celebration. Public pressure to uphold “assault” weapon and high-capacity magazine bans will be great, and as Justice Thomas stressed: “If a broad ban on firearms can be upheld based on conjecture that the public might feel safer (while being no safer at all), then the Second Amendment guarantees nothing.”

Margot Cleveland is a senior contributor to The Federalist. Cleveland is a lawyer and a graduate of the Notre Dame Law School as well as a former full-time faculty member and current adjunct professor for the college of business at the University of Notre Dame.

Views: 962


You need to be a member of 12160 Social Network to add comments!

Join 12160 Social Network

Comment by Diana on November 10, 2017 at 12:17pm

History shows us that banning things works - examples include strict gun laws in DC and Chicago, prohibition, drug laws to name a few.  One thing we know for sure is that criminals have a high regard for laws.  Don't worry if you are unarmed.  As Diane Feinstein said

:"When the gunman realizes no one else is armed, he will lay down his weapons and turn himself in.  That's just human nature."   Because that's how it works.   (Sarcasm)



Latest Activity

Diana posted photos
8 minutes ago
cheeki kea commented on Chris of the family Masters's video

You Might Question EVERYTHING After Watching This! (2018-2019)

"just slaves. except for the free will to do something about it, yes. all seems to make sense."
10 minutes ago
cheeki kea commented on Less Prone's blog post Hornchurch cafe branded racist over mini Union Jack flags served with food
"Hi DTOM, when my flag came under attack, strangely imports stood in Support of it, or it would have been gone burger. There is a war on the union jack."
1 hour ago
DTOM commented on Exposure's blog post Top 10 Transgender "Gods" in World Religions...
"Technically these are representative of the alchemical or Hermetic androgyne or hermaphrodite. "Of the Immortal Man it should be said that He is hermaphrodite, or male and female, and eternally watchful. He neither slumbers nor sleeps, and is…"
1 hour ago
Central Scrutinizer favorited Central Scrutinizer's discussion Dumbass Millennial kid gets the worst buttfuck'n on eBay I ever saw! $10,000 worth
1 hour ago
Billie Cokebottle's 2 discussions were featured
1 hour ago
DTOM posted blog posts
1 hour ago
"Neither is being President."
1 hour ago
cheeki kea commented on cheeki kea's photo

scripture says...

"on a lighter note, Is this lost in translation ? or have we all got something more to think about ? just wondering."
1 hour ago
Central Scrutinizer favorited DTOM's blog post DOOM Eternal Videogame Triggers SJWS As It Mocks Leftist Political Correctness On Immigration
1 hour ago
Diana replied to Old Denmark's discussion Catholic Priests Abused 1,000 Children in Pennsylvania, Report Says
"Church officials followed a “playbook for concealing the truth,” the reports states. The patterns were similar enough that FBI analyses of the church’s responses yielded seven rules, basically, an institutional guide to covering up…"
1 hour ago
cheeki kea posted a photo
1 hour ago
Central Scrutinizer favorited TheBigWedding's photo
1 hour ago
cheeki kea posted a status
"Good morning all"
1 hour ago
DTOM favorited Exposure's blog post E17 Brian Harvey - Death Threat - Now Charged by Police
1 hour ago
Diana replied to Old Denmark's discussion Sultan Khan's Utopia is Crumbling as Londonistan Becomes a 3rd World Gang Warzone
"But I thought knives were banned"
1 hour ago
DTOM commented on DTOM's blog post Trump to Netanyahu: Palestinians Must Be Completely Conquered
"Break out your rocks kids. Seems we are all Palestinians now."
2 hours ago
DTOM commented on Less Prone's blog post Hornchurch cafe branded racist over mini Union Jack flags served with food
"@james ha - The English (St Georges) and Union Flag have both been under attack from the left and their (((MASTERS))) for over 40 years. The intention was to 'white-guilt' the native population into abandoning their symbols and then their…"
2 hours ago
DTOM commented on DTOM's blog post DOOM Eternal Videogame Triggers SJWS As It Mocks Leftist Political Correctness On Immigration
2 hours ago
DTOM replied to Old Denmark's discussion Psychotic 'Empath Scientist' Chases Off 75% of Her PC Special Flake Researchers in Classic Drama in the Hen-house
"She is slated to return with a 'new start' in January 2019 TRANSLATION: It is hoped that you would have all forgotten this by then... Turns out she is the daughter of neurophysiologist Wolf Singer This pretty much says it all... His thesis…"
3 hours ago

Please remember this website is supported by your donations...

© 2018   Created by truth.   Powered by

Badges  |  Report an Issue  |  Terms of Service

content and site copyright 2007-2015 - all rights reserved. unless otherwise noted