Landmark 2A case might be heard by Supreme Court

[richardw]

Kolbe v. Hogan

What might be a landmark case regarding the banning of assault rifles could be headed for a Supreme Court hearing. The case, Kolbe v. Hogan, is scheduled for the SCOTUS conference of 11/21/17. That is when Justices will decide whether or not to hear the case.

The case is an appeal of the Fourth Circuit’s en band decision upholding the Maryland assault weapons ban. That case was originally heard in district court, which upheld the ban. Upon appeal a 3 judge panel found the ban to be a 2A violation. The State requested an en bans hearing, which resulted in reversing the appeal panel decision.

Almost immediately after the ban was upheld a petition was filed seeking SCOTUS to hear the case. Now the conference to make that decision has been scheduled. A number of legal experts think SCOTUS will elect to hear the case. The reasoning behind that is because there are now three Circuit Courts that have upheld such bans, but each one has used a different rational for coming to its decision. That means there is no clear test for determining whether a ban is proper or not. One duty of SCOTUS is to resolve such confusion and and conflicts by setting a national precedent.

Kolbe v. Hogan offers the pro 2A advocates the best opportunity to bring closure to the assault ban issue because the Fourth Circuit took a daring leap in upholding the MD ban. It interpreted SCOTUS’ Heller v. District of Columbia decision, which found that weapons that are in common use were protected under 2A, but that weapons best suited for Military use like the M16 could be regulated. That language of the decision was a bit murky. Clearly M16 rifles are not in common use because they are limited to use by the military unless one gets a special ATF approval to possess one. But AR15 style weapons are in common use and they look like and in some ways function similar to M16 rifles. So the unresolved questions that arises from Heller is what does “like the M16” mean. Does it mean look like or function like? And if it means function like how much similarity is required.

If it means look like, then banning assault rifles might not be a violation of 2A rights. If it means function like, then rifles that only look like military M 16 (including variations like the M 4) should not be subject to being banned especially if they are in common use. So called assault rifles are in common use with over 1,600,000 having been sold in the US.

The parameters of the Kolbe Case are such that SCOTUS might be forced to make a definitive ruling on several points. The MD ban was upheld not only on the basis of “look like” but also by a comparison of the the functionality of military assault rifles like the M16 and rifles like the civilian AR15. The en banc Decision reasoned that so called assault rifles functioned in a manner to make them similar to but not identical to military assault rifles. It found that the differences between automatic fire capability and semi automatic fire capability were not great enough to affect lethality so therefore they could be banned.

So now SCOTUS could be forced to do something it rarely does, that is, to rule with such specifics as to make interpretation of its decision absolutely clear. That would be a landmark 2A decision regardless of which way the Court would rule.

Of course it is possible that SCOTUS will not decide to hear the case and thus allow the ever increasing confusion and disagreement over banning assault like weapons to go unresolved. We shall see.

[GaryS]

While it is on the calendar for that date, there is no assurance that the Justices will discuss it or make a decision then. It's not unusual for a case scheduled for conference to be pushed back several times before it's discussed or a decision is made. Peruta was pushed back several times before cert. was denied.

[oneounceload]

So, are you saying you would be OK with them banning automatic weapons as long as as they leave "EBRs" that are semi-automatic alone? And if a decision goes the other way, does that now open up every long gun with a scope on it to be banned as a military "sniper rifle"? Will this then be extended to include all models and makes of handguns that the military uses - both ours and others?

[richardw]

Originally Posted by GaryS

While it is on the calendar for that date, there is no assurance that the Justices will discuss it or make a decision then. It's not unusual for a case scheduled for conference to be pushed back several times before it's discussed or a decision is made. Peruta was pushed back several times before cert. was denied.

Certainly correct. The case was scheduled for the 11/9 concerence and then postponed. It could happen again and yet again. Sooner or they will have to decide whether to take the case or not. I hope it is sooner.

[richardw]

Originally Posted by oneounceload

So, are you saying you would be OK with them banning automatic weapons as long as as they leave "EBRs" that are semi-automatic alone? And if a decision goes the other way, does that now open up every long gun with a scope on it to be banned as a military "sniper rifle"? Will this then be extended to include all models and makes of handguns that the military uses - both ours and others?

I said nothing about my preferences in my post. All I was trying to do was make people aware of the case, it’s importance, and the issues to be resolved. As the questions you posed of me about what the practical longer term rssulfs might mean in terms of gun control, I have no idea what might occur. The results could be great or horrible.

As for my opinion on banning automatic rifles, it makes no difference. They are already banned except for those who get ATF permission to own one.

[vonn]

They are all lawyers and need to be watched closely when they make decisions on anything. Thanks for posting.

[bushmaster1313]

Of course it is possible that SCOTUS will not decide to hear the case

I sincerely doubt Scotus will take the case. I believe MD allows certain semi-autos with removable magazines but bans others based on having two evil features. As such MD residents can still have semi-auto weapons with considerable firepower and their rights are not really being infringed.

see

Firearm Search

Allowing some Ruger Semi-Auto 5.56's but not others

Seriously, is New Jersey preventing me from keeping and bearing arms because it prohibits me from putting a flash hider or baynet lug on my .243 semi-auto?






IMHO, the ban based on cosmetic features might be arbitrary and capricious, but it is not a 2A violation

[richardw]

Originally Posted by bushmaster1313

I sincerely doubt Scotus will take the case. I believe MD allows certain semi-autos with removable magazines but bans others based on having two evil features. As such MD residents can still have semi-auto weapons with considerable firepower and their rights are not really being infringed.

see

Firearm Search

Allowing some Ruger Semi-Auto 5.56's but not others

IMHO, the ban based on cosmetic features might be arbitrary and capricious, but it is not a 2A violation

Appeals at the circuit and Supreme Court level are not based upon facts. They are based upon interpretations of the law. So it makes no difference what MD does re semis. The only thing that matters is whether the appeals court interpreted the Heller v. DC decision properly. It is a case where facts no longer matter. All that matters is how the Heller v. DC decision is interpreted by SCOTUS in light of the 4th Circuit decision.

[Muss Muggins]

Originally Posted by oneounceload

So, are you saying you would be OK with them banning automatic weapons as long as as they leave "EBRs" that are semi-automatic alone?

What's an "EBR?" I try to live in an AFZ (acronym free zone) . . .

[Muss Muggins]

Originally Posted by bushmaster1313

Seriously, is New Jersey preventing me from keeping and bearing arms because it prohibits me from putting a flash hider or baynet lug on my .243 semi-auto?

Yes . . .

Originally Posted by bushmaster1313

IMHO, the ban based on cosmetic features might be arbitrary and capricious, but it is not a 2A violation

" . . . shall not be infringed."

[richardw]

Originally Posted by Muss Muggins

What's an "EBR?" I try to live in an AFZ (acronym free zone) . . .

I hear you. We had so many acronyms in the Corps that I I sometimes wondered how we actually managed to communicate.

Setting that aside, an EBR is an enhanced battle rifle.

[Muss Muggins]

Originally Posted by richardw

I hear you. We had so many acronyms in the Corps that I I sometimes wondered how we actually managed to communicate.

Setting that aside, an EBR is an enhanced battle rifle.

Well, then that's really not germane to the discussion, since an EBR needs a tax stamp. An EBR that doesn't is just an R . . .

[richardw]

Originally Posted by Muss Muggins

Well, then that's really not germane to the discussion, since an EBR needs a tax stamp . . .

Exactly. You got it right.

[bushmaster1313]

Originally Posted by Muss Muggins

Yes . . .



" . . . shall not be infringed."

Right

But Heller allowed handguns because long arms were not suitable for everyone and some people needed a handgun to be armed.

Heller did not say 2A protected pink handguns or semi-autos with flash hiders

Resting your case on “shall not be infringed” is a losing argument at court.

To infringe a right the right must exist and have bounds. Government crosses the bounds and your rights are infringed

No right = no infringement

[fordson]

No right = no infringement
Sorry, the math there doesn’t comput for me. Unless you are saying that one has to have a “right” declared in order to have said “right” infringed.
Then, at what point is the threshold for infringement of said “right”?
No argument, just interested in opinions.

[Arik]

Originally Posted by bushmaster1313

I sincerely doubt Scotus will take the case. I believe MD allows certain semi-autos with removable magazines but bans others based on having two evil features. As such MD residents can still have semi-auto weapons with considerable firepower and their rights are not really being infringed.

see

Firearm Search

Allowing some Ruger Semi-Auto 5.56's but not others

Seriously, is New Jersey preventing me from keeping and bearing arms because it prohibits me from putting a flash hider or baynet lug on my .243 semi-auto?






IMHO, the ban based on cosmetic features might be arbitrary and capricious, but it is not a 2A violation

You do know that there are import rifles that you can't have barrels for! After all it's just a cosmetic feature! Any import rifle that was originally meant to be a military rifle ..... that barrel is considered an "implement of war" and cannot be imported. Same exact rifle made for civilian sales is ok a brand new barrel is ok but all that costs a lot of money. To get a good quality correct barrel runs $300 - $600 depending on the firearm.

Is the world going to end if I don't have a bayo lug? No! Has anyone been bayonetted to death lately? Recently? In any crime in the continental US in the last 50 years? So why can't I have that accessory?

Do you need a 243? Do you need that scope? How far can you actually see in the woods of NJ? Seems like you want to be some assassin or a sniper. Sounds more dangerous than that bayo lug!

Does NJ prevent you from keeping and bearing arms if you're only allowed single shot, smooth bore, front loading rifles? Mags and center fire ammo are not a 2A violation. Even ammo...any ammo ban is not a 2A violation! Nothing in the Constitution about keeping and bearing ammo.

Are these bans "arbitrary and capricious"? Sure! But you can play that down to nothing. A firearm is the receiver. Plain and simple. Everything else is just an accessory

[Muss Muggins]

We will agree to disagree on this point, and beyond the following, I have no more comment. I believe the Second Amendment protects pink handguns, 100 round magazines, bump fire stocks, and Hi Point firearms of any caliber, regardless of one's "need" for them or their popularity or usefulness. Once we start talking about "usefulness," and "need," we're infringing the right . . .

Originally Posted by bushmaster1313

Right

But Heller allowed handguns because long arms were not suitable for everyone and some people needed a handgun to be armed.

Heller did not say 2A protected pink handguns or semi-autos with flash hiders

Resting your case on “shall not be infringed” is a losing argument at court.

To infringe a right the right must exist and have bounds. Government crosses the bounds and your rights are infringed

No right = no infringement

[bushmaster1313]

Originally Posted by Muss Muggins

We will agree to disagree on this point, and beyond the following, I have no more comment. I believe the Second Amendment protects pink handguns, 100 round magazines, bump fire stocks, and Hi Point firearms of any caliber, regardless of one's "need" for them or their popularity or usefulness. Once we start talking about "usefulness," and "need," we're infringing the right . . .

Very well put

[CH4]

Originally Posted by bushmaster1313

Heller did not say 2A protected pink handguns or semi-autos with flash hiders

"Prior court holdings show that the sorts of weapons protected are those “in common use at the time."

Many of these weapons that are in common use possess these cosmetic characteristics, which do not increase the weapon's lethality. Not sure how SCOTUS will, if ever, address this issue.

[jag312]

Originally Posted by richardw

I hear you. We had so many acronyms in the Corps that I I sometimes wondered how we actually managed to communicate.

Setting that aside, an EBR is an enhanced battle rifle.

I always thought that EBR meant Evil Black Rifle. I guess that is the California interpretation.

[ChattanoogaPhil]

I wish I were a SCJ.

“Shall not be infringed”

Next case please.

[Deog]

“Most gun control arguments miss the point. If all control boils fundamentally to force, how can one resist aggression without equal force? How can a truly “free” state exist if the individual citizen is enslaved to the forceful will of individual or organized aggressors? It cannot.”

[bushmaster1313]

Originally Posted by fordson

No right = no infringement
Sorry, the math there doesn’t comput for me. Unless you are saying that one has to have a “right” declared in order to have said “right” infringed.
Then, at what point is the threshold for infringement of said “right”?
No argument, just interested in opinions.

Consider this:



There are several valid reasons that would pass muster as to why the Government could prevent me from owning the above gun without violating the Second Amendment:

1) State could say that putting Hello Kitty on a gun is a nuisance. The issue would be the interplay between my First Amendment right to free speech and the right of the Government to protect the safety of its young citizens from an attractive nuisance. Second Amendment would not be an issue.

2) Government could say that using Hello Kitty without permission was a copyright violation.

3) Government could say that the gun was infringing a valid patent if even one of the parts was patented and being used without a license.

4) The Constitution protects the Right to Contract. If I had contracted not to own this gun a Court could enforce that contract.

5) If the gun was defective, and prone to accidental discharge, the State could declare its ownership a nuisance.

My point is that a law preventing the ownership of a particular gun or a type of gun is not necessarily a Second Amendment violation.

(P.S., even if you do not my like take on the law, which is nothing more than personal opinion, I hope you like the photo)

[DevilDog72]

"My point is that a law preventing the ownership of a particular gun or a type of gun is not necessarily a Second Amendment violation."

Yes it is... in my opine....."shall not be infringed".

In fact the 2nd was designed to keep an overbearing government at bay and that the weapons employed by the gov should be available to the citizen.

[steelslaver]

To truly interpret law you must review and interpret the legislative intent of those who wrote the law. Anyone who has read the statements concerning the 2nd by the founding fathers would know it was meant as a way for the people to defend themselves, and if need be against an oppressive government.
Hard to believe such mean would want the people to have muzzle loaders and the government helicopter gun ships.

[fordson]

BM1313 - I can see your point that thru certain secondary interpretations and machinations of the law, some clever politicians could enact limited firearms regulations that do not directly confront the 2A. But my question still stands: at what point do these indirect firearm regulations become an infringement? Examples: Is the forced removal of the heat shield from my Winchester M97 because it looks too “military and war like” an infringement? I can still own it and the shotgun still functions as before. How small does your “kitty picture” have to be to avoid being a “nuisance”. My view, and only my view, is that while lawyers and politicians play legal gymnastics with the interpretation and justification of the 2A, our rights under that same 2A are being infringed upon. An infringement by any other name or avenues is still an infringement.

PS - I do like the photo ��

[bushmaster1313]

As stewards of the Second Amendment we have a responsibility not to encourage the loss of the actual right enshrined in the Constitution by insisting that the Constitution protects what it does not.

For example. IMHO it is entirely reasonable, rational and Constitutional for a jurisdiction to mandate that the color orange cannot be used in lethal firearms. If the pro-Second Amendment camp doubles down and says that this type of reasonable restriction is an unconstitutional infringement of the Right to Keep and Bear Arms "because any infringement is an infringement," they will be laughed out of court. Worse, it will cause damage because it will make the next case of a real infringement harder to win.

Credibility matters. Taking extreme positions that squander credibility is fatal in courts of law and in the court of public opinion.

Be careful out there.

[richardw]

Originally Posted by bushmaster1313

As stewards of the Second Amendment we have a responsibility not to encourage the loss of the actual right enshrined in the Constitution by insisting that the Constitution protects what it does not.

For example. IMHO it is entirely reasonable, rational and Constitutional for a jurisdiction to mandate that the color orange cannot be used in lethal firearms. If the pro-Second Amendment camp doubles down and says that this type of reasonable restriction is an unconstitutional infringement of the Right to Keep and Bear Arms "because any infringement is an infringement," they will be laughed out of court. Worse, it will cause damage because it will make the next case of a real infringement harder to win.

Credibility matters. Taking extreme positions that squander credibility is fatal in courts of law and in the court of public opinion.

See my subsequent post on what infrinegement means.

Be careful out there.

Yes. A resounding yes. So being motivated to think I have this to say.

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.

The words cited above preceded the Constitution by over ten years. They are the basis of the Constitution and the rule of law in our great country. They define the basic rights that cannot be taken away by any government or other entity that exercises any control over us. Notice that the words “to bear Arms” is not mentioned. The Constitutional right to bear arms flows from the unalienable rights to “Life” and “Liberty.” Without a means to defend oneself life and liberty can be swiftly lost.

Recall that the Second Amendment was not part of the Constitution as originally drafted by the framers. The original draft were the Articles drafted by the Framers. Once published and before approval resistance mounted because the Draft did not protect certain rights deemed to be critical to a free society. Those concerns were addressed in the Bill of Rights, the first ten Amendments to the Constitution. So the initial drafting of the Constitution was not impeccable and so was successful protested and amended.

So the critical question is whether the Rights granted by the first ten amendments are unalienable? Sorry but hey are not. Through the entire history of the United States under the approved Constitution certain rights guaranteed by the Bill of Rights have been subject to regulation. Those rights were deemed by the People to properly regulated for cause.

Let’s look at some examples of how Constitutional rights can be regulated under The Constitution.
The right to vote can be denied to a convicted felon in some States.
The right to be free of warrantless search can be lost in hot pursuit.
The right to free speech does not give a right to create havoc in public.
The right to bear arms can be denied to felons and others deemed unsafe
All of those denials of rights have been upheld by the Supreme Court. Only the reason for or the degree of the loss of Constitutional Rights is debatable under law. The simple fact is that rights change depending upon circumstances. The unalienable rights in th Declaration of Independence never change, but the sublordinate rights under the Cinstitution do change.

When some believe that the “Right to Bear Arms” is unalienable they are wrong. It has been and is alienable from day one after the Constitution was adopted. We cannot own tanks, flame throwers, howitzers, and in most cases machine guns, all of which are “Arms.”

The laws of our Country are based upon the “Reasonable Man” theory, that is, what would a reasonable man decide to be correct. That is a moving target. Recall when women could not vote, when slavery was legal, and when gay marriage was illegal. While it too many decades to resolve those issues the fact is that they outcomes defined them as unalienable rights through either Constitutional amendments or Supreme Court decisions. Yesterday and today the parameters of the Right to Bear Arms is in the hands of the Supreme Court because the Congress cannot or will not act.

In the Heller v. DC decision the Supreme Court rued that the Right to Bear Arms can be be reasonably regulated. I think it was a good decision. You have to read the decision before debating that if you disagree. The landmark case of Kolbe v. Hogan, if the Court hears it, will further define the “Right to Bear Arms.” We are now waiting for nine Justices to decide what is Reasonable. The Constitution that so many cite to defend their opinion says the Supreme Court is the final arbiter of disputes. If you support the Constitution, then you should support that fact. I took an oath to support and defend the Constitution. It did not end with my retirement from the Corps.

[richardw]

Based upon my last post above, I think it necessary to elAborate on 2A which employs the word “infringed.”

What does infringed mean? The dictionary is a tool often used by courts to understand statutes. The word infringed means “to encroach upon in a way that violates law or the rights of another.”

So when 2A says my rights may not be infringed it is not oblivious to the rights of others whose rights might be violated. What rights might those be? They are the same rights that allow people to own arms, and rose can be defined as the right to feel safe and secure.

So there is the dichotomy that the Supreme Court and other Courts must deal with. Our Constitution creates many dichotomies that nine Justices get to adjudicate.

[fordson]

BM1313 - yes and really do agree with you, however, I’m still asking, perhaps rhetorically, where is the threshold for “infringement “?
Only the courts will decide that, some may say, but the courts appear to be more of an “activist “ outlet of dogma then a true arbiter and interpreter of the written law. So, the color Orange, while reasonable to you or I, could be the edge of Ms. Polsei’s slippery slope? That’s a question, not a statement.

Master Guns - also agree with your fine write up. In our form of government, while we have more freedoms then most, as you pointed out, there are boundaries to our “rights”. You can own a tank or machine gun, however, heavily regulated and costly. You have the right to feel “safe and secure” by carrying a firearm, while your neighbor does not. It is up to the courts to determine those boundaries. What is “Reasonable” and what is “Infringement”? Like beauty, it can be in the eye of the beholder.

And again, no argument , just a really interesting discussion, the kind we would have around a pizza and beer.

[richardw]

Agreed, it is a very slippery slope because judges can settle an issue based upon their interpretation of the law. The consequences are that the en banc 4th Circuit clearly ruled that assault arms could be banned to protect people. Thus justifying an infringement of 2A by placing the right of people to feel secure ahead of the right to be secure in life and liberty by bearing arms. That is an oil soaked slope that SCOTUS 9 now have to deal with.

[johngalt]

In your analysis of rights you made a mistake in saying that the bill of rights granted rights. It did not. It recognized that they were pre-existing that must not be infringed. The original authors of the Constitution were opposed to adding the ammendments precisely because they were concerned that future generations would misconstrue the constitution as having the authority to grant rights. They said those rights are indeed unalienable, and therefor it would be redundant to list them. Furthermore, the federal government is a creation of the states and has only those powers granted to it by the states. Those powers don't include the granting of rights. Those rights existed before the Constitution was written.

Your examples of infringements are mostly within the last 100 years. The sorry fact that they have been upheld be the Supreme Court is evidence that the founders' concerns were correct.

[richardw]

Thank you for pointing that out. You are quite correct on all points.

[Gunsnwater]

Originally Posted by bushmaster1313

I sincerely doubt Scotus will take the case. I believe MD allows certain semi-autos with removable magazines but bans others based on having two evil features. As such MD residents can still have semi-auto weapons with considerable firepower and their rights are not really being infringed.

see

Firearm Search

Allowing some Ruger Semi-Auto 5.56's but not others

Seriously, is New Jersey preventing me from keeping and bearing arms because it prohibits me from putting a flash hider or baynet lug on my .243 semi-auto?






IMHO, the ban based on cosmetic features might be arbitrary and capricious, but it is not a 2A violation

So your ok with arbitrary and capricious laws? Sad state of affairs. Please keep that serfdom attitude in Jersy.

[Gunsnwater]

Originally Posted by richardw

Based upon my last post above, I think it necessary to elAborate on 2A which employs the word “infringed.”

What does infringed mean? The dictionary is a tool often used by courts to understand statutes. The word infringed means “to encroach upon in a way that violates law or the rights of another.”

So when 2A says my rights may not be infringed it is not oblivious to the rights of others whose rights might be violated. What rights might those be? They are the same rights that allow people to own arms, and rose can be defined as the right to feel safe and secure.

So there is the dichotomy that the Supreme Court and other Courts must deal with. Our Constitution creates many dichotomies that nine Justices get to adjudicate.

Please show us the Right To Feel Safe And Secure enshrined in the constitution.

We were warned that those who would trade liberty for security would have neither.

The constitution does not contain ambiguities. It is not unclear nor subject to interpretation. The Supreme Court is to judge a law against the plain language of the constitution. Period.

Precedence is a farce. Oh we don't want to rule against some prior settled law. B.S.

Would we not want slavery ended along with Japanese internment camps?

Too often the popular view, when it counters the constitution is adopted as law. The Bill Of Rights is for the unpopular. The popular needs no defense.

[ChattanoogaPhil]

Originally Posted by johngalt

In your analysis of rights you made a mistake in saying that the bill of rights granted rights. It did not. It recognized that they were pre-existing that must not be infringed. The original authors of the Constitution were opposed to adding the ammendments precisely because they were concerned that future generations would misconstrue the constitution as having the authority to grant rights. They said those rights are indeed unalienable, and therefor it would be redundant to list them. Furthermore, the federal government is a creation of the states and has only those powers granted to it by the states. Those powers don't include the granting of rights. Those rights existed before the Constitution was written.

The above cannot be stressed enough.

I particularly like the way AWR Hawkins expresses this.

"We don’t have the right to keep and bear arms because the Bill of Rights says so; rather, the Bill of Rights says so because the right to keep and bear arms is intrinsic to our very being: it is a right with which we were endowed by our Creator."

[richardw]

It is all a moot point now. SCOTUS has denied the case today 11/27.

[bushmaster1313]

Originally Posted by richardw

It is all a moot point now. SCOTUS has denied the case today 11/27.

Predictable outcome
SCOTUS wants to address total infringement if a core right

[BlueOvalBandit]

Disappointing but perhaps it will be resubmitted and heard later.

The motion of Edwin Vieira, Jr., et al. for leave to file a
brief as amici curiae is granted. The petition for a writ of certiorari is denied.

https://www.supremecourt.gov/orders/...17zor_f204.pdf

Not even a dissent.....