The court of appeals upheld a decision to keep the ban in place on 45 different types of weapon along with the 10 round limit on magazine capacity. In a longstanding battle between Second Amendment activists and the state, the 4th U.S. Circuit Court of Appeals in Richmond, Virginia ruled, in a 10 to 4 opinion, that these firearms are not protected under the Constitution.
Judge Robert King wrote of the decision stating that “Put simply, we have no power to extend Second Amendment protections to weapons of war.” He referenced the case of Columbia vs. Heller in his decision.
However, when we start taking apart a Constitutional right, making it apply to some things and not others, it is the beginning of a slippery slope in placing controls on even more types of weapon. Second Amendment Advocates would argue that “weapons of war” are exactly what the much debated amendment protects.
“It’s a very strong opinion, and it has national significance, both because it’s en-banc and for the strength of its decision,” said Maryland AG Brian Frosh who led the charge on this ban in 2013. His argument is that it is “unthinkable that these weapons of war, weapons that caused the carnage in Newtown and in other communities across the country, would be protected by the Second Amendment.”
This is poor reasoning and could lead to dangerous results. In contrast, in US v Miller the Supreme Court ruled that a short barrel shotgun was not protected by the Second Amendment BECAUSE it was not a common “weapon of war.”
“The Court cannot take judicial notice that a shotgun having a barrel less than 18 inches long has today any reasonable relation to the preservation or efficiency of a well regulated militia, and therefore cannot say that the Second Amendment guarantees to the citizen the right to keep and bear such a weapon.”
“Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment, or that its use could contribute to the common defense.” – US v Miller
US v Miller went on to describe the “well regulated militia” at length as “civilians primarily, soldiers on occasion” who were “expected to appear bearing arms supplied by themselves and of the kind in common [military] use at the time.”
Both Miller and Heller upheld some gun controls, they each upheld different standards. This most recent opinion from the 4th Circuit and the “weapons of war” arguments presented would appear to be in direct opposition to the Miller opinion of the Supreme Court.
By suggesting that something should be banned because of how certain people use it, you make a case for banning all weapons and even innocuous things such as knives, hammers, bats or cars and trucks. There have been numerous incidents across Europe, and even recently in New York, of terrorists killing people with trucks and cars.
However, this isn’t the only recent event that threatens the Second Amendment. Alabama Democrat Senate contender Doug Jones (currently facing off against Judge Roy Moore for AG Jeff Sessions’ Senate seat), stated that the Bill of Rights is limited and that the Second Amendment is “no exception.”
He said that “We’ve got limitations on all constitutional amendments in one form or another,” and suggested that such limitations should be applied to gun ownership despite the constitution clearly stating that this right shall not be “infringed.” That argument is generally supported by such examples as the First Amendment doesn’t protect the right to shout fire in a movie theater. This is a common false equivalency. It is NOT illegal to shout fire in a theater, IF there is in fact a fire. To do so without just cause is a misuse or abuse of the right, which does not translate to the mere ownership of any particular type of firearm. Misuse of the right to bear arms, like killing people without justification, is an abuse of the right. Simply owning an AR-15 or having 30 round magazines is not an abuse or misuse.
He has previously advocated for a Federal agency to be in control of who is and isn’t allowed to own guns. “The biggest issue, I think, that’s facing the Second Amendment right now is that we need to make sure we shore up the National Crime Information System, the NICS system for background checks, to both keep guns out of the hands of criminals, but at the same time, cut down on error so that law-abiding citizens can get those.”
Preemptive determination of who may abuse a right is a dangerous precedent to set. Probability is not certainty and without certainty, evidence and due process then merely being included in a high risk group would result in a denial of constitutionally protected rights. When politicians and politically motivated judges start chipping away at the very documents that have created a nation, it is not hyperbole to suggest that the nation will be changed if the laws and rights that shaped that nation are changed.
Mark is a political writer and journalist who has worked on campaigns for Brexit.