People Have A 'Fundamental Right' To Own Assault Weapons, Court Rules

[PK90 3,570]

People Have A 'Fundamental Right' To Own Assault Weapons, Court Rules

In a major victory for gun rights advocates, a federal appeals court on Thursday sided with a broad coalition of gun owners, businesses and organizations that challenged the constitutionality of a Maryland ban on assault weapons and other laws aimed at curbing gun violence. 

A three-judge panel of the U.S. Court of Appeals for the 4th Circuit said the state's prohibition on what the court called "the vast majority of semi-automatic rifles commonly kept by several million American citizens" amounted to a violation of their rights under the Constitution.

"In our view, Maryland law implicates the core protection of the Second Amendment -- the right of law-abiding responsible citizens to use arms in defense of hearth and home," Chief Judge William Traxler wrote in the divided ruling.

Provisions that outlaw these firearms, Traxler wrote, "substantially burden this fundamental right."

Former Maryland Gov. Martin O'Malley, who recently suspended his Democratic presidential campaign, signed Maryland's Firearm Safety Act of 2013 in the wake of the school massacre in Newtown, Connecticut, which spurred similar initiatives in other Democratic-leaning states.

The legislation mostly targets specific kinds of semi-automatic firearms -- such as AR-15s and AK-47s -- and large-capacity magazines, and adds certain registration and licensing requirements.

But gun rights advocates, including the National Rifle Association, quickly moved to challenge these laws in the courts, claiming that the restrictions they imposed on lawful gun ownership were overly broad and weren't proven to save lives.

"This case was a major victory for the NRA and gun rights advocates." Adam Winkler, UCLA law professor

The legal attacks have largely failed. Last October, a federal appeals court in Manhattanupheld the most iconic of these laws -- those passed in New York and Connecticut in direct response to the tragedy at Sandy Hook Elementary School in Newtown. And in December, the Supreme Court declined to review a ruling out of Illinois that upheld a similar ban on assault weapons.

The high court's reluctance to intervene in these disputes has left the Second Amendment in a bit of a state of flux. Since the Supreme Court established in 2008 and 2010 that the amendment protects a personal right to keep and bear arms for self-defense within the home, judges have struggled to apply those decisions to the newer spate of gun legislation. And inconsistent rulings and standards across the country have left the scope of the law unclear.

When the Supreme Court refused to take up the Illinois case, Justice Clarence Thomas complained that the Second Amendment was being relegated to "a second-class right."

"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," he wrote, and added that those earlier decisions enshrining the right to gun ownership shouldn't be expected to "clarify the entire field."

 

The lack of clarity since then underscores why Thursday's decision may be a boon to those who want to see a broader interpretation of the Second Amendment, setting the stage for the next Supreme Court confrontation.

"This case was a major victory for the NRA and gun rights advocates," said Adam Winkler, a law professor at UCLA who specializes in Second Amendment law. "This opinion is an important one because it subjects important gun control laws to the most strict form of judicial scrutiny."

Indeed, the biggest surprise in Chief Judge Traxler's 66-page opinion is the words "strict scrutiny," a stringent constitutional test that most government laws and regulations fail. Other courts have applied more forgiving standards to similar gun legislation and upheld it.

The 4th Circuit's decision didn't outright strike down the Maryland legislation. Instead, it instructed a lower court to subject the provision to a higher legal standard, meaning more litigation and the possibility of a future showdown at the Supreme Court -- though maybe not yet, according to Winkler.

As if to illustrate the volatile politics and legalities of gun control, dissenting Circuit Judge Robert King all but declared that the court's ruling would lead to the next mass shooting. 

"Let's be real," King wrote. "The assault weapons banned by Maryland's [law] are exceptionally lethal weapons of war."

[capt14k 2,052]

Just mentioned this in post about Safe Act heading South. This Presidential Election is oh so important. As long as a Dem or Bush doesn't win Court should get a few more conservatives and if NJ tries to pass Safe Act in 2 years and 3rd Circuit doesn't strike it down Supreme Court will have to hear the case and assuming any Republican not named Bush (Christie has no shot) wins NJ Gun owners win.

 

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[maintenanceguy 510]

The judge said that the lower court used the wrong standard to decide the case, not that the decision was wrong.   He sent it back to the lower court with instructions to consider the case again using "strict scrutiny" as the standard.  Strict scrutiny only means that the law is bad unless the government has a "compelling interest" in having the law.  A compelling interest isn't that hard to find if the court is willing to cooperate with the state and pretend it exists.  Since this court already ruled in favor of the law, I'd suspect they want to see the law stay and will look under every rock until they find that compelling interest.

 

If I'm wrong and the lower court does change it's ruling, there will be a split in the courts.  We all thought a split in the courts on the right to carry would force SCOTUS to take up that question.  But it didn't.   I feel that SCOTUS is done with gun laws for a while.   Even if they took this up, it's one thing to say that everyone has the right to own a gun.  It's another to say that everyone has the right to own scary looking guns.  It could easily be a loss instead of a win.  Right now the court is 3 conservatives, four liberals, one undependable conservative (Roberts), and one justice who seems to use a random coin flip to decide cases (Kennedy).

[n4p226r 105]

I'm no lawyer but I read the plan for the state would be to appeal this ruling asking for en banc hearing and if not getting it appealing to a Supreme Court. I guess not appealing the strict scrutiny ruling is worse than allowing the lower court to hear a strict scrutiny case.

[n4p226r 105]

Chief Judge Traxler. Appointed to the federal district court of South Carolina by George HW Bush. Appointed to the 4th district court of appeals by Clinton

 

Justice Agee appointed by George W Bush

 

 

 

Dissenting Judge King appointed by Clinton

[mipafox 438]

We are already losing cases to court panels with a majority of Obama appointees.

[n4p226r 105]

And in the 4th circuit cour of appeals 6/15 are Obama appointees

[Alex V 99]

I feel like all of this is on a glacial time scale.  By the time the situation in NJ gets any better, I will be in SC...

[n4p226r 105]

Yes. It is that slow. But it didn't get this bad overnight

[capt14k 2,052]

The judge said that the lower court used the wrong standard to decide the case, not that the decision was wrong. He sent it back to the lower court with instructions to consider the case again using "strict scrutiny" as the standard. Strict scrutiny only means that the law is bad unless the government has a "compelling interest" in having the law. A compelling interest isn't that hard to find if the court is willing to cooperate with the state and pretend it exists. Since this court already ruled in favor of the law, I'd suspect they want to see the law stay and will look under every rock until they find that compelling interest.

 

If I'm wrong and the lower court does change it's ruling, there will be a split in the courts. We all thought a split in the courts on the right to carry would force SCOTUS to take up that question. But it didn't. I feel that SCOTUS is done with gun laws for a while. Even if they took this up, it's one thing to say that everyone has the right to own a gun. It's another to say that everyone has the right to own scary looking guns. It could easily be a loss instead of a win. Right now the court is 3 conservatives, four liberals, one undependable conservative (Roberts), and one justice who seems to use a random coin flip to decide cases (Kennedy).

That is incorrect. Compelling government interest is only one of three tests that must be satisfied. The other two are the law must be narrowly tailored to achieve the goal or interest, banning most semi automatic Rifles that are rarely used to commit murder makes the law too broad and thus it fails, the third is the law must be the least restrictive means for achieving the interest, which means if there is a less restrictive way to achieve the goal then the law is no good again it fails.

 

As for the makeup of the court the next 3 to go are Ginsburg, Breyer, and Kennedy which are 2 Liberals and a loose cannon. Scalia likely will be done after them. If we control the House, Senate and Presidency even if we lose Scalia we will be able to replace him and the 3 others with 4 Strong Conservatives. Which means we will have Thomas and Alito + 4 and the liberals will be down to Sotomayor and Kagan. Roberts clearly changed his vote at the last minute on Obamacare based on how the dissent was written (sounded more like the majority opinion). I have my theories on why (losing illegally adopted Irish Children?). So I wouldn't count him out as being a Conservative. Which means it will be more likely 2nd Amendment Cases are heard by the court and won 7-2 at worse 6-3.

 

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[JohnnyB 4,322]

That is incorrect. Compelling government interest is only one of three tests that must be satisfied. The other two are the law must be narrowly tailored to achieve the goal or interest, banning most semi automatic Rifles that are rarely used to commit murder makes the law too broad and thus it fails, the third is the law must be the least restrictive means for achieving the interest, which means if there is a less restrictive way to achieve the goal then the law is no good again it fails.

 

As for the makeup of the court the next 3 to go are Ginsburg, Breyer, and Kennedy which are 2 Liberals and a loose cannon. Scalia likely will be done after them. If we control the House, Senate and Presidency even if we lose Scalia we will be able to replace him and the 3 others with 4 Strong Conservatives. Which means we will have Thomas and Alito + 4 and the liberals will be down to Sotomayor and Kagan. Roberts clearly changed his vote at the last minute on Obamacare based on how the dissent was written (sounded more like the majority opinion). I have my theories on why (losing illegally adopted Irish Children?). So I wouldn't count him out as being a Conservative. Which means it will be more likely 2nd Amendment Cases are heard by the court and won 7-2 at worse 6-3.

 

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Far too many ifs for my taste. Hillary can still be elected! Your entire post only makes sense IF a Republican President is elected.

 

The FSA, (Free Shit Army) is powerful, as even their dead will vote democrat. The corrupt Socialists will do everything to keep us from winning the White House.

[Fred2 367]

I think Jersey is under a different jurisdiction isn't it?

 

It would be great if they apply that people having a right to carry a gun. If they don't do that they should at least allow people to sue judges who deny permits.

They are

http://www.tpath.org/sappa-district-court-documents.html

 

These guys seem to be our best hope.

[mipafox 438]

As for the makeup of the court the next 3 to go are Ginsburg, Breyer, and Kennedy which are 2 Liberals and a loose cannon. Scalia likely will be done after them.

Baloney.

 

John Roberts 61

Antonin Scalia 79

Anthony Kennedy 79

Clarence Thomas 67

Ruth Bader Ginsburg 82

Stephen Breyer 77

Samuel Alito 65

Sonia Sotomayor 61

Elena Kagan 55

 

Scalia is just as ready to drop dead or retire as the rest of them. Heck, all of them except Kagan are getting old enough that somebody might decide they had enough or start suffering medical problems.

 

And don't think Clinton can't find two worse liberals and a third for the "loose cannon."

[capt14k 2,052]

Baloney.

 

John Roberts 61

Antonin Scalia 79

Anthony Kennedy 79

Clarence Thomas 67

Ruth Bader Ginsburg 82

Stephen Breyer 77

Samuel Alito 65

Sonia Sotomayor 61

Elena Kagan 55

 

Scalia is just as ready to drop dead or retire as the rest of them. Heck, all of them except Kagan are getting old enough that somebody might decide they had enough or start suffering medical problems.

 

And don't think Clinton can't find two worse liberals and a third for the "loose cannon."

Clinton absolutely can. That was my point why this POTUS election is so important. Kennedy, Breyer, and Ginsburg have all talked about retiring. I included Scalia due to his age. The rest I would be surprised if anything happened in the next 4 years. Not sure what it is but SCOTUS Justices seem to live long lives and stay on the bench for a long time.

 

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[capt14k 2,052]

what worries me is the mischief they can do. Hell they could say anyone who breaks into the us and says they like it has a right to stay. I am getting sick of it to the point I agree that our founders would be shooting by now.

And thus the point of the 2nd Amendment; a fail safe for when the checks and balances of the 3 branches fail. For the protection against ALL Tyranny whether Foreign or DOMESTIC

 

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[raz-0 1,259]

what worries me is the mischief they can do. Hell they could say anyone who breaks into the us and says they like it has a right to stay. I am getting sick of it to the point I agree that our founders would be shooting by now.

You do realize in the days of our founders, if you just st showed up and liked it you could stay. That's how immigration worked then.