ANTIGUN ACTIVISTS’ RELENTLESS ASSAULT ON LONG-GUNS

PART FOUR

MARJORY STONEMAN DOUGLAS HIGH SCHOOL STUDENTS WITH THE ACTIVE ASSISTANCE OF ANTIGUN AND OTHER RADICAL GROUPS PURSUE ANTI-SECOND AMENDMENT AGENDA THAT HAS NOTHING TO DO WITH ENHANCING SCHOOL SAFETY AND SECURITY.

ANTIGUN ACTIVISTS TARGET SEMIAUTOMATIC LONG-GUNS FOR ELIMINATION THROUGH SCHOOL-AGE CHILDREN: THE PROXIES FOR ANTIGUN GROUPS.

Make no mistake: the relentless assault on semiautomatic long-guns that antigun activists call “assault weapons” is itself an assault on civilian ownership of all semiautomatic weapons, not merely some of them. This relentless assault on so-called “assault weapons” is an attack on the natural and sacred right of the people to keep and bear arms, codified in the Second Amendment to the U.S. Constitution.American citizens should not believe for a moment that antigun activists and their cohorts in State legislators and in Congress, and those who echo their sentiments in Hollywood and in the mainstream media, and the billionaire benefactors behind the scenes who fund the effort to destroy our sacred rights and liberties do not—all of them— seek to end civilian gun ownership in this Country. They say they merely support “common-sense” gun laws and “sensible” constraints on gun ownership. But their principal goal is confiscation and eventual elimination of all firearms in the hands of civilians.Through enactment of the National Firearms Act of 1934, civilian access to selective-fire and fully automatic firearms has been effectively eliminated. Since that time antigun activists have attempted, with varying degrees of success, to ban semiautomatic guns defined as ‘assault weapons.’ But, the distinction between semiautomatic handguns and semiautomatic long guns construed as ‘assault weapons,’ that antigun activists and legislators feel American civilians should not be permitted to own and possess, is fuzzy. Each State has its own legal standards.Against the backdrop of the Marjory Stoneman Douglas High School tragedy, many jurisdictions are enacting or are attempting to enact increasingly more onerous firearms laws. The distinction between semiautomatic weapons defined as banned ‘assault weapons’ and those that aren’t is becoming increasingly tenuous. Antigun activists and antigun legislators strive to cast ever more semiautomatic handguns and long guns into the ‘assault weapon’ banned category.

ANTIGUN ACTIVISTS SEEK TO END CIVILIAN OWNERSHIP OF ALL SEMIAUTOMATIC WEAPONS IN THE UNITED STATES, NOT MERELY SOME OF THEM.

In a recent March 2, 2018 article, titled, “With AR-15s, Mass Shooter Attack with the Killing Power of Many U.S. Troops,” posted in the National Section of the paper edition of The New York Times newspaper, and published digitally, on February 28, 2018, under the title, "With AR-15-s, Mass Shooters Attack With the Rifle Firepower Typically Used by Infantry Troops," Times’ reporters wrote a lengthy article on semiautomatic long guns that was uncharacteristically discerning. In hundreds of earlier articles, NY Times reporters, Op-Ed columnists and NY Times contributors--and those writing for other mainstream newspapers--carelessly, and clumsily, refer to the semiautomatic long gun, modeled on the original Armalite AR-15 semiautomatic rifle, as an ‘assault weapon.’ The expression, ‘assault weapon,’ was invented by antigun proponents as a political device to pursue a gun confiscation agenda, attacking an entire category of firearms in common use among the law-abiding American citizens that comprise the civilian population. But the expression, 'assault weapon,' isn't a technically accurate one; and it is not to be confused with the expression, ‘assault rifle,’ which is a technically precise military term of art.Often, in the same newspaper articles, writers will use ‘assault weapon’ and ‘assault rifle’ interchangeably, likely not knowing the difference, and not caring if they did know as the distinction isn’t crucial to the running narrative, which is that both categories of firearms are, as antigun proponents perceive them, "weapons of war"--which is another political phrase, and one also tinged with emotion. "Weapons of war," so the narrative goes, have no place in “civilized” Countries.But, the March 2, NY Times article is decidedly different from previous antigun articles. The reporters here appear intent on demonstrating that semiautomatic long guns, modeled on the progenitor, Armalite AR-15, presently marketed to the civilian population, truly are military weapons and, so, must be banned. In that article, the expression, ‘assault weapon,’ doesn’t even appear.The article is presented as a seeming technical exposition on “AR-15” rifles. The Times reporters, who wrote the article, compare the civilian “AR-15” rifle to various military models. They assert:“The main functional difference between the military’s M16 and M4 rifles and a civilian AR-15 is the ‘burst’ mode on the many military models. . . . But in actual American combat these technical differences are less significant than they seem. For decades the American military has trained its conventional troops to fire their M4s and M16s in the semiautomatic mode—one bullet per trigger pull—instead of on ‘burst’ or automatic in almost all shooting situations. The weapons are more accurate this way and thus more lethal.” Consider these remarks for a moment. The NY Times reporters are using quasi technical exposition here in an attempt to make the case that no appreciable difference exists between “AR-15” rifles and their military counterparts. The reporters argue, tacitly, that  the politically charged expression, ‘assault weapon,’ and the military expression, ‘assault rifle,’ do accurately refer to the same kind of rifle, after all. But, do they? The NY Times reporters remark that many troops are issued military rifles without selective-fire capability at all. They do this in an obvious attempt to dispel the criticism constantly and accurately leveled against mainstream news reporters which is that some semiautomatic rifles marketed to the civilian population may exhibit superficial, cosmetic similarities to military rifles, but these rifles are functionally different from military rifles. Yet, in the recent NY Times article, the reporters categorically state that AR-15 semiautomatic rifles are functionally equivalent to military M4 and M16 assault rifles. But are they? The reporters assert:“The NRA and other pro-gun groups highlight the fully automatic feature in military M4s and M16s. But the American military, after a long experience with fully automatic M16s reaching back to Vietnam, decided by the 1980s to issue M16s and later M4s to most conventional troops without the fully automatic function,* and to train them to fire in a more controlled fashion. What all this means is that the Parkland gunman, in practical terms, had the same rifle firepower as an American grunt using a standard infantry rifle in the standard way.”It is abundantly clear that the Times’ reporters—clearly speaking for antigun proponents generally—are targeting all semiautomatic weapons for elimination, not merely some of them. They attempt to get across the idea that since any semiautomatic weapon is capable of rapid, controlled fire, all semiautomatic weapons represent a threat to public safety and must be eliminated—long guns and handguns.

THE STATE OF THE LAW ON SEMIAUTOMATIC RIFLES MODELED ON THE ORIGINAL ARMALITE (“AR-15”) SEMIAUTOMATIC RIFLE

The federal ban on “AR-15” rifles expired in 1994 when the 10-year sunset provision kicked in. But many States have enacted their own laws, banning these rifles. Two cases on whether so-called “assault weapons” fall within the core protection of the Second Amendment went up to the U.S. Supreme Court on a writ of certiorari. One of them, Kolbe vs. Hogan, 849 F.3d 114, 2017 U.S. App. LEXIS 2930 (4th Cir. 2017), en banc, cert. den., 138 S. Ct. 469, 199 L. Ed. 2d 374, 2017 U.S. LEXIS 7002, 86 U.S.L.W. 3264, was denied a hearing and review by the U.S. Supreme Court, without comment. An earlier case involving the issue, Friedman vs. City of Highland Park, 784 F.3d 406, 2015 U.S. App. LEXIS 6902 (7th Cir. Ill., 2015), cert. den., 136 S. Ct. 447, 193 L. Ed. 2d 483, 2015 U.S. LEXIS 7681, was denied but over a vigorous dissent from Justice Clarence Thomas, with the late Justice Antonin Scalia joining Thomas in the dissent.Justice Thomas stated in pertinent part:“The City’s ban is thus highly suspect because it broadly prohibits common semiautomatic firearms used for lawful purposes. Roughly five million Americans own AR-style semiautomatic rifles. See 784 F. 3d, at 415, n. 3. The overwhelming majority of citizens who own and use such rifles do so for lawful purposes, including self-defense and target shooting. See ibid. Under our precedents, that is all that is needed for citizens to have a right under the Second Amendment to keep such weapons. See McDonald, 561 U. S., at 767-768, 130 S. Ct. 3020, 3036-3037, 177 L. Ed. 2d 894, 914-915; Heller, supra, at 628-629, 128 S. Ct. 2783, 2817-2818, 171 L. Ed. 2d 637, 679-680.The Seventh Circuit ultimately upheld a ban on many common semiautomatic firearms based on speculation about the law’s potential policy benefits. See 784 F. 3d, at 411-412. The court conceded that handguns — not ‘assault weapons’ — ‘are responsible for the vast majority of gun violence in the United States.’ Id., at 409. Still, the court concluded, the ordinance ‘may increase the public’s sense of safety,’ which alone is ‘a substantial benefit.’ Id., at 412. Heller, however, forbids subjecting the Second Amendment’s ‘core protection . . . to a freestanding ‘interest-balancing’ approach.’ Heller, supra, at 634, 128 S. Ct. 2783, 2821, 171 L. Ed. 2d 637, 683. This case illustrates why. 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."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."Despite the opinion of a U.S. Supreme Court Justice, antigun proponents, including those occupying the lower appellate and district courts, evidently don’t give a damn either for high Court precedent or for our sacred, natural right, codified in the Second Amendment.And, this brings us to critical Second Amendment Soto vs. Bushmaster Firearms International, LLC., 2016 Conn. Super. LEXIS 2626; CCH Prod. Liab. Rep. P19,932, which the Arbalest Quarrel has written extensively about and will continue to do so. See, e.g., the AQ article, Soto vs. Bushmaster: Antigunners Take Aim at Gun Manufacturers.The Soto case arises from the deadly attack that occurred on December 14, 2012, in Newtown, Connecticut, when a deranged young adult, Adam Lanza, 20 years old, stormed Sandy Hook Elementary School, fatally shooting twenty children and six adults, before turning a handgun on and killing himself. According to the allegations of the Soto Plaintiffs' First Amended Complaint (CM), Adam Lanza murdered these school children and school staff with a Bushmaster AR-15, model XM15-E2S rifle.The Soto Plaintiffs contend that the Defendant, Bushmaster (Remington), manufacturer of the weapon, specifically, a Bushmaster AR-15, model XM15-E2S rifle, which, as alleged, the killer, Adam Lanza, used to commit the murders at Sandy Hook Elementary School—along with the firearms’ distributor and dealer who served as the intermediaries through which the weapons were sold to the killer’s mother, and ultimately fell into the hands of the killer, Adam Lanza—bears legal, not merely moral, responsibility for the deaths of children and adults that occurred at Sandy Hook Elementary School in Newtown, Connecticut, and that, this is due to the fact of Defendant Bushmaster’s marketing of its AR-15 rifle to the entirety of the civilian population in this Country, and the manner in which the Defendant manufacturer, Bushmaster marketed its AR-15 model semiautomatic rifle to the entirety of the civilian population in this Country.The Protection of Lawful Commerce in Arms Act (the ‘PLCAA’), Pub. L. No. 109-92, 119 Stat. 2095. 15 U.S.C. §§ 7901-03 (2005). The PLCAA provides immunity to firearms manufacturers and dealers from any lawsuit, pending or otherwise, fitting the Act's definition of a ‘qualified civil liability action.’ 15 U.S.C. §§ 7902-03, and the trial Court found for the Defendants’ on Defendants’ Motion to Dismiss. Plaintiffs appealed the adverse decision directly to the Connecticut Supreme Court, and the State high Court agreed to hear the case.Soon, the State Supreme Court of Connecticut will decide whether to affirm the trial Court’s decision dismissing Plaintiffs suit or remand the Soto case to the Superior Court of Connecticut. The State Supreme Court should affirm the trial Court and not remand the case. In fact, the State Supreme Court shouldn’t have agreed to hear the case in the first place since the PLCAA makes clear that plaintiffs in the Sandy Hook Elementary School cannot overcome Defendants’ qualified immunity. If, though, the case is remanded to the trial Court and if the trial Court reverses its previous stance, that can have dire consequences for manufacturers of semiautomatic rifles modeled on the Armalite AR-15. We shall wait and see. The Wall Street Journal, in an article, titled, “Key Gun Case Awaits Ruling in Connecticut,” published on March 17, 2018, discussing the Soto case, and posted online under the title, "The Court Case Making Gun Manufacturers Anxious," hints that the Connecticut Supreme Court may soon issue a ruling.The question is whether the Connecticut Supreme Court will be swayed by political considerations in light of the Marjory Stoneman Douglas High School shooting incident. It shouldn’t, but, as the matter of semiautomatic long guns is now front and center in the public’s psyche due to massive negative coverage by the mainstream media, and, as we know that liberal Courts that have a dim view concerning the Second Amendment, it is anyone’s guess how the Connecticut Supreme Court will proceed. We must wait and see.This much, we do know, despite the opinion of a U.S. Supreme Court Justice, antigun proponents, including lower Appellate and District Court antigun judges, don’t give a damn either for high Court precedent or for our sacred, natural right, codified in the Second Amendment. Lest there be any doubt about this, consider the words of the antigun New York Times Op-Ed Columnist, Bret Stephens, who made the following remark in an NY Times OP-Ed, posted, on February 16, 2018, titled: "To Repeat: Repeal the Second Amendment."“We need to repeal the Second Amendment because most gun-control legislation is ineffective when most Americans have a guaranteed constitutional right to purchase deadly weaponry in nearly unlimited quantities.” Hey, Bret—Any firearm is potentially deadly. The question is whether the person wielding it is responsible. And, Bret, how much ammunition is too much? Our guess is that for you, Bret, and for other like-minded sanctimonious antigun activists, even one round is too much.____________________________________*The Arbalest Quarrel contacted an expert on small arms weaponry. The Times' reporters' assertion is absolutely false. "Assault rifles" marketed to the military have two main configurations. One configuration has a three-way selector for the following three modes: safe, semiauto, and full auto. The second configuration has a four-way selector for four modes: safe, semiauto, full auto, and burst. Consider, if a military configuration were limited to semiauto mode only, there would be no reason for any rifle to have anything other than the "AR-15" designation as semiautomatic rifles issued to military troops would in fact be identical to the semiautomatic rifles presently marketed to the civilian population. It is true that Army troops and Marines are trained to use semiautomatic fire or burst fire in many instances in order to conserve ammunition and for accuracy. But, for extraction and when charging an enemy position head-0n, full auto is tactically necessary: hence, the need for a selector switch on military models, to serve varying combat needs. The NY Times reporters deviously mix pertinent facts with critical omissions, including an out-and-out lie. Deceptive "fake news" reporting is, unfortunately, to be expected from the mainstream Press as the Press promotes an agenda, and we see deceptiveness in abundance in this "news" article. The mainstream Press is in the business of propagandizing, of psychologically conditioning the American public to perceive the world in a false light. The Press is no longer in the business of informing and enlightening the public, if it ever were in the business of presenting factually accurate news accounts._________________________________________________Copyright © 2018 Roger J Katz (Towne Criour), Stephen L. D’Andrilli (Publius) All Rights Reserved.

KOLBE VS. HOGAN: A SECOND AMENDMENT CASE DECISION THAT IS CONTRARY TO THE RULE OF LAW

MARYLAND’S FIREARM SAFETY ACT: ATTACKING THE CORE OF THE SECOND AMENDMENT THROUGH THE VENEER OF PROMOTING PUBLIC SAFETY.

WHAT DOES THE RULE OF LAW REALLY MEAN?

KOLBE VS. HOGAN

PART NINE

Politicians love to pontificate, tirelessly, grandiosely, often meaninglessly. We hear them say that our Country is ruled by law, not by men, proclaiming, indefatigably, assiduously, pompously, but ingenuously, how important the rule of law is in a free Democratic Republic and how much importance they attach to the concept of the rule of law—that is to say, how much importance they attach to the concept of the rule of law over men as opposed to law ruled over by men.Yet, as with any overused expression—the rule of law phrase no less so than any other expression becomes trite, over worn. The phrase has been, through much misuse and overuse by politicians and political pundits and hacks, reduced to cliché with little if any real effect and efficacy behind it. It is recited with little thought and care as to its import. So, we should step back and ask what the phrase means as used in the sentence: our Country is a Nation ruled by law, not by men. What does that sentence as a proposition to live by—for the people to be governed by—really mean, were it in fact adhered to, rather than given mere lip service? It means just this: no person, regardless of position, wealth, status, or station, stands above our Constitution, our Bill of Rights, our system of laws, our jurisprudential authority. That is the intent at any rate, lofty as that intent is, and so often disregarded.We, Americans, are supposed to be governed by laws, but laws and jurisprudential standards, consistent with the dictates of our Nation’s Constitution, sublimely overseen by our Nation’s Bill of Rights. That is as the framers of our Nation’s Constitution with its preeminent Bill of Rights intended. That is as the founders of a free Republic envisioned. That is as our Nation was always supposed to be. What happened to change this?Quietly, subtly, seemingly irrevocably we are sliding into the throes of tyranny, which, by definition, means a Nation ruled by men—by the dictates of men—not by law.

HOW TYRANNY ARISES IN A FREE REPUBLIC

How may tyranny arise in a free Republic—in our free Republic?Tyranny arises in one of three ways. It arises, first, when our Legislative Branch drafts and enacts laws that subvert our Constitution or subvert our Bill of Rights. We see this, firsthand, through Congressional enactment of laws that undermine the searches and seizures clause of the Fourth Amendment and Congressional enactment of laws that whittle away at the right of the people to keep and bear arms as codified in the Second Amendment to the U.S. Constitution. We see this also when laws designed to protect the integrity of our borders are not adhered to. How often do we hear by Congressional Democrats and by Congressional Centrist Republicans that the Nation’s immigration laws are broken—a scarcely disguised phrase that means we have millions of illegal immigrants in our Nation whom—some would argue—cannot feasibly, from a pragmatic standpoint, be returned to their native Countries or that—as others may argue— ought not, from some moral imperative, be returned to their native Countries; and, so, we should amend our immigration laws to allow these illegal immigrants to remain in our Country, providing all of them with amnesty and, eventually, with de facto, if not de jure, citizenship.Yet we ought to ask, before Congress either amends our present immigration laws or repeals the laws outright and rewrites the laws in full, how is it that we have eleven or twelve million illegal immigrants in our Nation? Where did they all come from? How did they happen to be here? It is not as if eleven or twelve million immigrants surreptitiously crept across our borders overnight. They came in dribs and drabs over decades. That would suggest that our present immigration laws are not broken at all and that they never were broken. It is simply that the federal Government never adequately, zealously enforced the laws we have. Similarly, it may be convenient and useful for some to say that we have a problem with gun violence and that we should curtail civilian citizen ownership and possession of firearms. But, to account for gun violence, is the problem to be found in the millions of law-abiding civilian citizens who own and possess firearms or is it, rather, in the lack of enforcement of federal and State criminal laws that the problem of gun violence truly rests? Do we then ask of Congress that it enact further gun laws directed against the citizen civilian population? Would that really address the problem of gun violence that is the product of criminal misuse of firearms? Tyranny arises when Congress—the First Branch of Government—either fails to enforce the useful laws—those designed to preserve and strengthen our Nation’s values and traditions, and our rights and liberties—or enacts useless or bad laws—laws at odds with our values and traditions, and at odds with our sacred rights and liberties.Tyranny arises, second, when the Chief Executive of the Nation, the Second Branch of Government unilaterally undermines our Constitution and our Bill of Rights, occurring through executive edict and fiat, essentially subsuming the functions of the Legislative Branch, unconscionably into the Executive Branch. We saw this firsthand with Barack Obama’s misuse of executive directives, most glaringly, those directives weakening our immigration laws and those directives weakening the right of the people to keep and bear arms, and those directives aimed at weakening our moral codes.We would have seen this through the misuse of executive directives had Hillary Clinton assumed the Office of the U.S. President. Where a U.S. President ignores the laws enacted by Congress or where a U.S. President actively contravenes the laws of Congress, or where a U.S. President creates his or her own laws through edicts and directives adverse to the laws laid down by Congress, thereby becoming a law unto himself, this is tyranny. This means our Nation is ruled by men, not by law.In these two instances the Legislative and Executive Branches of our Government often take their orders from powerful, secretive interests, desirous of supplanting the U.S. Constitution and the Bill of Rights in the pursuit of personal nefarious interests at odds with the rule of law, at odds with the Separation of Powers Doctrine, and at odds with the rights and liberties and protections secured for the benefit of the American people under the Nation’s Bill of Rights. Thus, we would see our Country proceeding inexorably toward ruin. We would see our Country, as an independent, sovereign Nation and as a free Republic, in jeopardy.But, there is a third threat to our Nation’s continued existence as a free Republic and as an independent sovereign Nation, second to no other Nation.Tyranny arises, third, when our Judiciary--the third Branch of our Government—comprising our Federal Courts--go awry, ignoring its own case law precedent, peppering and lacing case decisions, not with the law as it exists, but with law as individual jurists would like that law to be, creating new “law” out of whole cloth—new law that undermines, rather than safeguards, our Bill of Rights—new law that supports a jurist’s personal philosophical convictions and beliefs—such personal philosophical convictions and beliefs that, taken to the extreme, disassemble our sacred rights and liberties—that, taken to the extreme, supplant our rights and liberties with artificial constructs, denigrating the very idea inherent in our legal system, namely that our Constitution, our Bill of Rights, reign supreme—second to those of no other nation, and no group of nations, and no international tribunals.The threat to our Nation—our Nation as a Free Republic, grounded in and overseen by our Bill of Rights, codifying natural law, our fundamental rights, supreme, emphatic—is most serious, most grievous, and most egregious when that threat derives from an overzealous, freewheeling Federal Judiciary, operating from a personal philosophical perspective, one at odds with the import and purport of our Nation’s Bill of Rights, one in contravention to clear case law precedent that promotes uniformity, consistency in our body of law.The threat posed by a federal judiciary that eschews case law precedent constitutes a serious breach and the most serious threat to our Nation and to the rule of law, for the federal Judiciary, as the Third Branch of our Government, as the interpreter of law, is the final bastion of “the rule of law.”If a federal judiciary forsakes its duty under the law, tyranny arises in the most devious way imaginable, for it is in the third Branch of Government—with its learned practitioners of the law—most adept at subverting the law if it so chooses—doing so secretly, within the interstices of complex terminology and argot—that the lay American public becomes hoodwinked, thinking that its rights and liberties are other than the way the public might think--less than they may have imagined--less than they really are. That is where the true subversion of the rule of law occurs.The Second Amendment case ((Kolbe vs. O’Malley, 42 F. Supp. 3d 768 (D. Md. 2014); vacated and remanded, Kolbe vs. Hogan, 813 F.3d 160 (4th Cir. 2016); rev’d en banc, Kolbe vs. Hogan, 849 F.3d 114 (4th Cir. 2017)), illustrates how far some federal courts will go to decide cases in contravention to United States Supreme Court precedent, doing so through dissimulation, through dissembling; and, in so doing, acting in league—whether conscious or not—with those unscrupulous interests in Congress and with those sanctimonious interests in the mainstream media, and with those hardened, confident, powerful, shadowy, ruthless interests behind the scene—to undermine our most sacred right—the right of the American people to keep and bear arms in their own defense, in defense of their families, and in defense of all American people— against tyranny.It is one thing for Courts to denigrate the sanctity of the Second Amendment through misapprehension of the law. It is quite another for Courts to denigrate the sanctity of the Second Amendment through deliberate misapplication of the law. Unconscious misapprehension of the law in judicial decision-making may be pardonable although its impact on the lives of Americans is harmed just the same, albeit contained. Deliberate misapplication of the law in judicial decision-making isn’t pardonable. It operates as a betrayal. That betrayal suffuses itself throughout the body of our Nation’s law, throughout the entirety of our system of law, throughout our jurisprudence, weakening the very heart of the Constitution—the Bill of Rights, negating the principle that we are a Nation ruled by law, not by men.Part Ten of the Arbalest Quarrel analysis of the disastrous Fourth Circuit Kolbe decision follows forthwith, where we begin our in-depth analysis of the lower U.S. District Court of Maryland that first decided Kolbe. We explain how the lower Federal Court contravened U.S. Supreme Court case precedent, rendering a decision wholly at odds with the holdings and reasoning of District of Columbia vs. Heller, 554 U.S. 570; 128 S. Ct. 2783; 171 L. Ed. 2d 637; 2008 U.S. LEXIS 5268 (2008).______________________________________________Copyright © 2017 Roger J Katz (Towne Criour), Stephen L. D’Andrilli (Publius) All Rights Reserved.

THE MILITIA CLAUSE IN THE SECOND AMENDMENT: IT IS, UNFORTUNATELY, STILL AT LOGGERHEADS WITH THE INDIVIDUAL RIGHT TO KEEP AND BEAR ARMS

Maryland's Firearm Safety Act: Attacking The Core Of The Second Amendment Through The Veneer Of Promoting Public Safety

KOLBE VS. HOGAN:

PART EIGHT

Those Lower Federal District Courts And Higher Federal Circuit Courts Of Appeal That Seek To Disarm Americans, Do So In Clear Denigration Of The Core Of The Second Amendment And In Clear Defiance Of The U.S. Supreme Court Decision And Reasoning In Heller.

When deconstructing the history of Kolbe, (Kolbe vs. O’Malley, 42. F. Supp. 3d 768 (D. Md. 2014); vacated and remanded, Kolbe vs. Hogan, 813 F.3d 160 (4th Cir. 2016); rev’d en banc, Kolbe vs. Hogan, 849 F.3d 114 (4th Cir. 2017)), legal commentators and laymen generally ignore the issue whether the prefatory militia clause still constrains the right of the people to keep and bear arms. They do so for an obvious reason. After all, the U.S. Supreme Court held, in District of Columbia vs. Heller, 554 U.S. 570; 128 S. Ct. 2783; 171 L. Ed. 2d 637 (2008), that the Second Amendment protects an individual right to possess a firearm unconnected with an individual’s service in a militia. Thus, one might reasonably assume that a sacred shibboleth of the antigun movement and of the antigun movement’s benefactors in Congress, in the media, in finance, and in several of the Courts, may finally be laid to rest. Yet, that isn’t true at all. Those opposed to Heller's rulings maintain the case was wrongly decided and must, at some point, be overturned. Those jurists who share the antigun establishment's sympathies thereupon render rulings as if Heller never existed. The influence of old dogma sets in and pervades judicial opinions. One, though, should not be surprised about this. After all, the Heller case was decided narrowly, sharply demarcated along liberal wing/conservative wing lines.Those Justices opposed to the Heller rulings made clear their disagreement of and, indeed, their disdain for the methodology employed by, the positions embraced by, and the legal and logical conclusions deduced from the premises accepted by the Court's majority in reaching their conclusions. For, the Heller Court majority accepted, as axiomatic, and, in the first instance, that the right of the people to keep and bear arms is a natural right, preexistent in man and not a privilege bestowed on man by the State, through Government. It is Government that is an artificial construct, not the rights and liberties, codified in the Bill of Rights. This sacred principal, that the right of the people to keep and bear arms is a natural right, preexistent in man, is consistent with the framers' belief concerning the concept of natural rights, inherent in man. Such rights and liberties, preexistent in man, forever rest beyond the power of the State, through its Government, to intrude upon and to destroy. This sacred precept, the dissenting Justices, in Heller, would not accept, could not accept, would never accept. Thus, the conclusions they reached in Heller were the opposite to, diametrically opposed to those conclusions drawn by the Court's majority. The philosophical differences dividing liberal wing and conservative wing Justices are much ingrained, and marked. Those philosophical differences manifest in the Court’s majority opinion and in the two dissenting opinions. Those differences continue to play out in the rulings and reasoning of the judges who sit on the lower U.S. District Courts and on the higher U.S. Circuit Courts of Appeal. The differences cannot be reconciled. They will never be resolved. The differences are deep set, visceral, as well as intellectual. Surely, the Justices of the U.S. Supreme Court were aware of the nature of and extent of the philosophical differences that lay between them, that informed their notions of the individual's relation to Government. They pushed back and pushed back hard against the majority opinion in Heller, written by Scalia. But the dissenting opinions in Heller, penned by Justices Stevens and Breyer, who also concurred in each other's opinions, in Heller are legally and logically weak. The reasoning of the dissenting Justices is logically faulty, often internally inconsistent, incoherent, and clearly antithetical to the framers' ideas concerning the fundamental rights and liberties of Americans.But the dissenting Justices, unlike the majority in Heller, whose conclusions follow from sound premises, cannot overcome a singular hurdle. It is a hurdle that weakens their position and ultimately makes their position untenable, ultimately reducing their argument to a reductio ad absurdum. The dissenting Justices must accept one premise that is a basic assumption of the Heller Court majority, namely that the right of the people to keep and bear arms can, at least in theory, under the dissenting Justices' thesis, be vindicated. This is critical. For, if the right of the people to keep and bear arms cannot be vindicated, then the right does not exist, and the right codified in the Second Amendment reduces the Second Amendment to a nullity as the right sits empty in the Second Amendment, as a bald face lie. Of course the dissenting Justices hold contempt for the right embodied in the Second Amendment. But, they dare not say that. They cannot say that even as inconsistencies in their position illustrate that the right codified in the Second Amendment simply cannot, under their thesis, be vindicated. It is a painful thing to see--and their contempt for the right codified in the Second Amendment lurks, like some hideous beast, just beneath the surface of their legal opinions.Justice Stevens, in the first paragraph of his dissenting opinion, joined by Justices Souter, Ginsburg and Breyer, says, “The question presented by this case is not whether the Second Amendment protects a ‘collective right’ or an ‘individual right.’ Surely it protects a right that can be enforced by individuals. But a conclusion that the Second Amendment protects an individual right does not tell us anything about the scope of that right.” District of Columbia vs. Heller, 554 U.S. at 636; 128 S. Ct. at 2822; 171 L. Ed. 2d 684. Yet, Justice Stevens lays out this odd gambit, proclaiming unconvincingly and, in fact, inconsistently, that, the individual right of the people to keep and bear arms can be vindicated, notwithstanding that the right is tied exclusively to one’s connection with and service in a militia. But, is not the right of the people to keep and bear arms, then, as argued by Justice Stevens, a collective right, after all? If so, the right cannot be an individual right. It is one or the other, not both; and it must be one or the other. But, the two are mutually exclusive. But, if the right of the people to keep and bear arms is a collective right, after all, then, how is the right ever to be vindicated? We constantly get back to the same problem with the dissenting Justice's thesis. Justice Stevens' opening paragraph does not set forth a vehicle through which he might argue, soundly, that a right exists under the Second Amendment that can be vindicated. And, the point that he puts forth in the opening paragraph of his dissenting opinion, namely, that the distinction between individual rights and collective rights is not a critical question before the Court is false.Justice Stevens attempts to conflate the concept of individual rights and collective rights, ostensibly to support the notion that the right of the people to keep and bear arms that he proclaims to be tied solely to one's connection with a militia, can be vindicated. He knows that collective rights cannot be vindicated. So, he posits that the reader can and should dispense with the individual right/collective right distinction in the context of the Second Amendment. He dismisses the importance of the distinction as irrelevant, when, in fact, it is critical to an understanding of the import and purport of the sacred right embodied in the Second Amendment. Still, he posits, up front, that the reader can and should  dispense with the individual right/collective right distinction. We should not dispense with the individual right/collective right distinction, from the legal standpoint, because doing so is an affront to the framers' idea of the right of the people to keep and bear arms as a natural right, governed by natural law--that the right is not, then, man-made, and, therefore, ought not be constrained by man-made laws. And, we cannot dispense with the individual right/collective right distinction from a logical standpoint, because doing so, in the context of the import of the right of the people to keep and bear arms would, then, be incoherent. Justice Stevens presents this assertion as an assumption to be accepted, as reasonable. It isn't. It is a proposition the truth of which must be proved. He does not prove it. Justice Stevens asserts it anyway, as a given, as a naked assumption, and then proceeds on his merry way with his argument that the right to be vindicated does exist; and that the right can exist within the notion of connection with one's service in a militia--a collective right, after all, a collective right that does not and cannot exist legally, and, more importantly, a right that does not and cannot exist logically. Justice Stevens thereupon, negates, tacitly, at least, the truth of the assumption he makes, and his argument, existing as it does on that single false assumption, collapses in, on itself. But, Justice Stevens continues with his faulty logic, undeterred. After surmising that the right of the people to keep and bear arms can be vindicated in the context of an individual's connection with a militia, Justice Stevens continues with the crux of his thesis, namely that the Second Amendment's dependent clause, that he refers to as a "preamble," carries the force of the right. Justice Stevens argues that the right of the people to keep and bear arms is conditioned by, limited by the "preamble." Justice Stevens claims that the preamble is critical to an understanding of the meaning of the right established. He emphasizes the importance of the "preamble" to the Second Amendment when he should know that, in law, a preamble never carries, within it, a legally enforceable right at all. Enforceable rights do not exist in the preambles to contracts, laws, or even constitutions. Rights exists in the operative portions of contracts, laws, and constitutions. The right of the people to keep and bear arms is not conditioned by the dependent, antecedent clause of the Second Amendment. The right is contained solely in the independent, operative clause of Second Amendment. And, in that operative clause of the Second Amendment there is no qualification or condition, limiting the extent of the right. Moreover, as an embodiment of a natural law, the right of the people to keep and bear arms cannot be conditioned anyway.Nonetheless Justice Stevens emphasizes the importance of the antecedent clause, the preamble. He opines, “The preamble to the Second Amendment makes three important points. It identifies the preservation of the militia as the Amendment’s purpose; it explains that the militia is necessary to the security of a free State; and it recognizes that the militia must be ‘well regulated.’ In all three respects it is comparable to provisions in several State Declarations of Rights that were adopted roughly contemporaneously with the Declaration of Independence.” District of Columbia vs. Heller, 554 U.S. at 640-641; 128 S. Ct. at 2824-2825; 171 L. Ed. 2d 686-687. Were Justice Stevens correct—an opinion still held erroneously by many lower U.S. District Court judges and higher U.S. Circuit Court of Appeals judges as well—a question arises whether there is anything left to the right of the people to keep and bear arms that shall not be infringed. For, if the right of the people to keep and bear arms extends merely to one’s service in a militia, does not that interpretation essentially destroy the right embodied in the Amendment? It does; and, in fact, that is the point Justice Scalia was getting at in Heller when taking Justice Stevens to task, and it is a point that Justice Stevens was never able to effectively counter, try as he did.Justice Stevens was, apparently, astute enough to recognize the problem with his position. It’s a problem that transcends legal considerations. It is one that rises to the level of a logical defect in his thesis. He therefore felt compelled to respond to it, albeit he did so in a footnote. But Justice Stevens response is confusing and ultimately logically unsatisfactory.Attempting to circumvent Justice Scalia’s point, Justice Stevens asserted in his typical roundabout, fashion that, “The Court assumes—incorrectly, in my view—that even when a state militia was not called into service, Congress would have had the power to exclude individuals from enlistment in that state militia. See ante, at 600, 171 L. Ed. 2d, at 662. That assumption is not supported by the text of the Militia Clauses of the original Constitution, which confer upon Congress the power to ‘organiz[e], ar[m], and disciplin[e], the Militia,’ Art. I, § 8, cl. 16, but not the power to say who will be members of a state militia. It is also flatly inconsistent with the Second Amendment. The States' power to create their own militias provides an easy answer to the Court's complaint that the right as I have described it is empty because it merely guarantees ‘citizens' right to use a gun in an organization from which Congress has plenary authority to exclude them.’ Ante, at 600, 171 L. Ed. 2d, at 662.” District of Columbia vs. Heller, 554 U.S. at 655 fn 20; 128 S. Ct. at 2833 fn 20; 171 L. Ed. 2d 695 fn 20. Justice Stevens argues in his dissenting opinion that Congress cannot exclude one’s right to keep and bear arms. But, suppose a State should decide to exclude one’s right to keep and bear arms. What then does that make of the individual right of the people to keep and bear arms and in what manner would a person be able to vindicate that right against one’s own State? But, there is a more serious problem. For, even as to Congress, if one surmises that the right of the people to keep and bear arms is bound up in the notion of a militia, Congress may very well have plenary power to disband a State militia. In fact, it has done so, and has emphasized its power over a State’s militia even during the infancy of this Nation. That means the right of the people to keep and bear arms either exists within the context of a man-made construct--a militia--and, if so, the right, then, does not exist and never existed at all, or the right exists, quite simply, independently of, and always did exist independently of, one's connection with a militia. The right must exist, then, in the individual. A State’s militia, as an organized body of men simply no longer exists. Congress has seen to that. Congress itself has essentially destroyed the organized militia of every State through legislation in which a State’s National Guard is essentially a component of the United States Army, while the Air National Guard of a State is a component of the United States Air Force. “Today, the states’ security personnel are not militiamen, but principally are the members of local law enforcement—and the bulk of counterterrorism work will fall to them.” “The Security Constitution,” 53 UCLA L. Rev. 29, 141-142 (October 2005), by Jason Mazzone, Professor of Law, Brooklyn University Law School. Expanding upon the point, the author says, in a footnote, “In thinking about modern translations and applications of the Constitution, one error must be avoided: equating the National Guard with the old militia. The National Guard claims to be the direct descendant of the militia. See National Guard Website, History, http://www.arng.army.mil/history (last visited July 27, 2004). In fact, the National Guard originated in the early twentieth century as a part of the national military. See Act of Jan. 21, 1903 (the Dick Act), ch. 196, 32 Stat. 775 (promoting the efficiency of the militia, and for other purposes and forming the Organized Militia as the ‘State National Guard,’ in accordance with the organization of the Army, and with federal funds and army instructors); Act of June 3, 1916 (National Defense Act), ch. 134, 39 Stat. 166 (making the National Guard part of the Army). Moreover, the National Guard is nothing like the old militia. The cornerstone of the Constitution's militia was universal service (by adult white men), whereas the National Guard is an entirely voluntary corps. The militia originated as a local institution under the authority of the states, but the National Guard is, by law, part of the national military, run by, paid for, and mobilized by the national government. See Uviller & Merkel, supra note 425, at 142-43. Indeed, ‘the militia . . . was designed and supported as an alternative to the professional standing army of the central government. The modern National Guard, then, is not just different from the militia referred to in the Constitution, it is in many ways, its antithesis.’ Id. at 153-54 (concluding that there is today no functionally equivalent entity of the old militia). The militia was not only separate from the national army, it was meant to outnumber and overpower it. (Recall Madison's claim about what a half million militiamen could do to twenty-five or thirty thousand regulars. See supra text accompanying note 177.) Today, though, more than 1.4 million troops belong to the regular United States military establishment - the Army National Guard has about 360,000 members. Uviller & Merkel, supra note 425, at 143. The distinction between the old militia as an alternative to a standing army and the National Guard as the army itself is symbolized by a further difference: who takes care of the weapons. Militiamen kept their guns at home because they might need them at any moment to rise up in arms against oppression. Weapons for use by National Guardsmen are kept under lock and key in federal armories. Further, the only armed fighting Guardsmen do is at the direction of the government itself. See id. at 143-44. (Without pressing the point too far, police officers today keep and maintain their own weapons; it is also a fair assumption that to the average citizen, seeing a police officer, gun in holster, patrolling a street, is less startling than seeing a Guardsman in fatigues with an M16.) For all of these reasons, it is wrong to read the Constitution's militia provisions as referring today to the National Guard. At the same time, the federal government can, of course, deploy the National Guard - as part of the national military - for homeland security purposes.” 53 UCLA L. Rev. 29, 141-142 fn 621 (October 2005), by Jason Mazzone, Professor of Law, Brooklyn University Law School.To tie the right of the people to keep and bear arms into the notion of a "militia" or into the descendent of the militia--the National Guard, which is essentially a part of a "standing army"--the very thing the framers sought, in the codification of the right in the Second Amendment to be a guard against--turns the right into a blasphemous, ludicrous caricature. Justice Stevens must have known of the disingenuousness of his remarks in Heller. One can forgive Justice Stevens’ intellectual fallibility. But one cannot forgive, nor should one forgive, blatant hypocrisy.Eleven years prior to Heller, Justice Stevens wrote his dissenting opinion in Printz vs. United States, 521 U.S. 898, 117 S. Ct. 2365, 138 L. Ed. 2d 914 (1997). This was a case where, as in Heller, not incidentally, Justices Souter, Breyer, and Ginsburg concurred in Justice Stevens' dissenting opinion. Justice Stevens' dissenting opinion in Printz may be perceived as a precursor to his dissenting opinion in Heller, in which the Justice elaborates on his desire for a strong federal Government to thwart the excesses of the public--where excess means the existence of an armed citizenry. Justice Stevens' contempt for the Second Amendment--a contempt shared by the liberal wing of the Court that concurred in his opinion--is on full display in Printz. Again, as in Heller, Justice Stevens' twists his words, arguing, in Printz, essentially that the Federal Government must require the individual States to clamp down on an "armed citizenry." This according to Justice Stevens, in his usual twisted logic, serves as a guard against tyranny. For, if the Federal Government should, on its own, simply create a vast bureaucracy to clamp down on an armed citizenry, that would certainly lead to tyranny. But, does there exist a difference? In Printz, a case cited by the author of the aforementioned law review article, the U.S. Supreme Court—in an opinion penned by Justice Scalia, for the majority—invalidated a portion of the Brady Handgun Violence Prevention Act that prohibits the Federal Government from commandeering State Executive Officials from enforcing Federal law. Justice Stevens and the other liberal wing contingent of the high Court took exception to that. Justice Stevens argued that Congress was well within its power to compel a State's assistance in fighting “the epidemic of gun violence”—which, Stevens felt the Brady Act was enacted to combat.With his proclivity to contort ideas through verbal legerdemain, Justice Stevens argued, in Printz, that tyranny is less likely to occur in our Nation when the Federal Government can and ought to compel the States to act in its behest than were the Federal Government simply to “create vast national bureaucracies to implement its policies.” Printz vs. United States, 521 U.S. at 959, 117 S. Ct. at 2396, 138 L. Ed. 2d at 959 (1997). Extrapolating from Printz, one might reasonably argue that Stevens makes a similar case in his dissenting opinion in Heller. Tyranny, for Stevens is less likely to occur when the Federal Government can compel the States to constrain possession of firearms in the citizenry than were the Federal Government to create a vast National bureaucracy to do the job itself. But, in terms of the result, this is truly a distinction without a difference. If the militia is identified with the National Guard and the National Guard is essentially an adjunct of the United State Army and if the individual’s right to keep and bear arms is a function of one’s connection with a State militia qua a State’s National Guard, wherein is the right to keep and bear arms, existent in the individual, to be vindicated? If the threat, as Justice Stevens sees it, as evidenced in his dissenting opinion in Printz, is found in the very existence of an armed citizenry as situated apart from that armed citizenry’s connection with a State’s militia qua National Guard, as merely an adjunct of the Federal Government’s standing army, then wherein is one to envision anything left of the Second Amendment as a right to be vindicated?Does it matter whether it is the State that constrains the individual or the State that constrains the individual on behalf of and at the behest of the Federal Government, or the Federal Government that constrains the individual on its own behalf and at its own behest? Tyranny is the end result in any event, however one chooses to look at it.________________________________________________Copyright © 2017 Roger J Katz (Towne Criour), Stephen L. D’Andrilli (Publius) All Rights Reserved.  

RATIONALIZING AWAY THE RIGHT OF THE PEOPLE TO KEEP AND BEAR ARMS: THE LENGTHS SOME COURTS WILL GO "TO DISARM" HELLER

Maryland's Firearm Safety Act: Attacking The Core Of The Second Amendment Through The Veneer Of Promoting Public Safety.

KOLBE VS. HOGAN:

PART SIX

Kolbe Is Not Merely An Example Of A Poorly Decided Case; It Is Illustrative Of The Way In Which Courts, Antithetical To The Second Amendment Right Of The People To Keep And Bear Arms, Use Legal Argot To Disguise Their Contempt For And, Indeed, Abhorrence Of Our Sacred Right And Their Disdain For The Heller Court Rulings.

To understand the Kolbe case*—to truly understand its diabolical import—it is incumbent to delve into the intricacies and nuances of the seminal 2008 U.S. Supreme Court case, District of Columbia vs. Heller, 554 U.S. 570; 128 S. Ct. 2783; 171 L. Ed. 2d 637 (2008). It is difficult to appreciate the lengths to which some federal courts will go to undermine the right of the people to keep and bear arms as codified in the Second Amendment to the U.S. Constitution; and it is difficult to appreciate just how horrific the decision in Kolbe is—certainly to those who take seriously the right of the people to keep and bear arms—without considering the thought that went into the Heller decision, as penned by the late Justice Antonin Scalia, writing for the Majority of the high Court.Heller is the most important Second Amendment case to come out of the U.S. Supreme Court since the 1939 case, U.S. vs. Miller, 307 U.S. 174; 59 S. Ct. 816; 83 L. Ed. 1206 (1939). The high Court in Heller has, for the first time in the Court’s history, enunciated and elucidated several critical precepts that constitute the impetus for the Framers' inclusion of the Amendment in the Bill of Rights. The import of the Heller case rulings and reasoning of the Court's Majority can be reasonably perceived as the purest, clearest recognition by the high Court, to date, of the Framers' expression of the inviolability of and sanctity of the individual, within the Nation State. This is seen in the individual's position of and status, in this Nation State, as the armed citizen. The armed citizen stands above the Federal Government. The armed citizen stands as the guarantor of and guardian of a Free Republic. The armed citizen stands as the resolute and absolute check against tyranny. These points frighten those that espouse a collectivist society, operated by powerful interests that lurk unseen in the interstices of Government and in the World at large. It is not the criminal element that is feared by these collectivists. It isn't the occasional lunatic that is feared by these collectivists. It isn't even Islamic terrorists that is feared by these collectivists. No! It is the armed citizen that these collectivists fear; and they use, for propaganda purposes, the criminal psychopath, the lunatic, and the rapacious Islamist terrorist as a rationale for disarming the average, rational law-abiding, American citizen--the one element that, alone, can prevent the collapse of a Free Republic and the shredding of the U.S. Constitution. For, it is the end of our Free Republic and the erasing of the U.S. Constitution and of our sacred Bill of Rights that is the endgame for these silent, secretive, seductive, seditious collectivists. The Second Amendment and the Heller case stand, like a massive, impenetrable,   concrete wall in their way.The following ten precepts follow from the rulings of District of Columbia vs. Heller, 554 U.S. 570; 128 S. Ct. 2783; 171 L. Ed. 2d 637 (2008):First, the right of the people to keep and bear arms is a natural right, preexistent in the people. Second, since the right of the people to keep and bear arms is a natural right, preexistent in the people, the right is not to be considered man-made; the right is not, then, a creature of Statute, created by government. Third, since the right of the people to keep and bear arms is not a right created by government, the right cannot be lawfully taken away from the people by government. Fourth, the Second Amendment exists merely as a codification of the right of the people to keep and bear arms. That means the right doesn’t flow from or spring into existence due to its presence in the U.S. Constitution as the Second Amendment. Rather, the Second Amendment exemplifies—is a literal token for—the intangible, indestructible right that preexists in the people. Fifth, the right of the People to keep and bear arms is an individual right, unconnected to one’s service in a militia. Sixth, the dependent clause, “a well-regulated militia being necessary to the security of a free State” does not function as a limitation on the right of the people to keep and bear arms. The words, “a well-regulated militia being necessary to the security of a free State,” functions merely as a rationale for the codification of the right in the Constitution. The prefatory, dependent clause is not the operative clause and must not be taken as such. For, it is not the militia that has the right to keep and bear arms and it is not one’s service in a militia that serves as a basis upon which the right, if any, to keep and bear arms, exists; for, once again, the right to keep and bear arms preexists in the people. Seventh, the 'people' refers to each individual American. The term, as utilized in the Second Amendment is not referring to 'people' in a collective or group sense. Eighth, to minimize the operative clause, “the right of the people to keep and bear arms,” in relation to the prefatory clause, “a well-regulated militia being necessary to the security of a free State—not only denigrates the right inherent in the people, but destroys any notion that the right of the people to keep and bear arms exists inherently, primordially, intrinsically, in the individual. Ninth, the right of the people to keep and bear arms is not a social construct, but exists within the essence of man. Tenth, the right of the people to keep and bear arms exists immutably, independently in the individual self, completely apart from all social, political, or legal systems. The Court’s Majority in Heller accepts these precepts. The dissenting Minority Justices did not, and do not, and to date—along with like-minded Federal Appellate and District Courts, and like-minded antigun groups and like-minded mainstream media publishers, editors, and journalists, and like-minded legislators at the local, State and federal levels—the distaste for the Heller rulings, among those who have no regard for the Second Amendment, remains strong, virulent.Local and State governments that draft codes, regulations, and Statutes in denigration of the plain, explicit meaning of the Second Amendment, do so at their peril for they are operating in clear defiance of our Constitution; they are demonstrating ignorance of the Framers’ intentions; they are exhibiting disdain for the rulings of the U.S. Supreme Court in Heller; and, therewith, they do show an abject lack of concern for the rights and liberties of the American people.Worse, yet, lower federal District Courts and higher federal Appellate Courts that dare to uphold rather than strike down unconstitutional laws that collide with the right codified in the Second Amendment show their disdain for legal precedent when they opine injudiciously and deprecatingly the inscrutability of Heller and try, ignominiously and duplicitously, to distinguish Heller from the case before them, thereby forsaking all sound judgment and jurisprudential consideration to obtain a ruling that meets with their personal feelings of what the law pertaining to fundamental rights ought to be, rather than what the law is.The Heller case is notable for dispelling—decidedly, decisively completely—any lingering doubt that antigun groups and like-minded Courts, and the mainstream media might have that the Second Amendment bestows, upon Americans, a collective right to bear arms only—a right to bear arms connected with one’s service in a State militia and nothing more. Thus, local and State governments hell-bent on curbing the Second Amendment and Courts of competent jurisdiction that are called upon to give their imprimatur on Statutes and codes and regulations that are inconsistent with the Second Amendment and inconsistent with U.S. Supreme Court precedent are caught in a vise. So, how do they proceed?These renegade State governments and their fellow travelers in the federal Court system operate as if the Heller rulings don’t exist. The Governments continue to draft and to enact draconian gun laws, inconsistent with and detrimental to the meaning and purport of the Second Amendment, while lower federal courts and the higher federal Appellate Courts, working in lockstep with these renegade governments defy U.S. Supreme Court precedent, rather than render decisions in deference to it, albeit no doubt, concerned that their decisions will be overturned—as well they should—by the U.S. Supreme Court if the high Court accepts the case for hearing.Of course, the hope of those who oppose the Heller decision and who seek to chisel away at the imposing immutability of the right of the people to keep and bear arms has been dashed. Opponents of the Heller decision had expected, but failed, to place on the high Court, Judge Merrick Garland who had sat, and now, once again sits, on the U.S. Court of Appeals for the D.C. Circuit. Judge Garland is an intractable foe of the fundamental right of the people to keep and bear arms—Americans’ most sacred right. The reaction of those in the Government bureaucracy, and those in the Courts, and those in Congress, and those in the mainstream media that seek de facto repeal of the Second Amendment through the overturning of Heller, is palpable, visceral—more so now that a Judge, nominated by U.S. President Donald Trump, and confirmed by the United States Senate, and who respects U.S. Supreme Court precedent, sits on the high Court, Justice Neil Gorsuch.Now that Justice Neil Gorsuch has taken his seat on the United States Supreme Court, Americans have a man who will give due regard to the rulings in Heller—rulings that Judge Merrick Garland, were he to sit on the high Court instead, would, with the other liberal wing Justices, most certainly, shred. There's no doubt about that. With Justice Neil Gorsuch on the high Court, however, the legacy of the late Justice Antonin Scalia, as ardent defender of Americans’ fundamental right to keep and bear arms as codified in the Second Amendment, should remain secure. But, no one individual can ever guarantee that our Bill of Rights will remain secure. Federal Court cases such as the Kolbe case illustrate that lower Federal District Courts and higher U.S. Circuit Courts of Appeal that disagree with the Heller Majority’s legal and logical reasoning, jurisprudential methodology and philosophy, and the Majority’s precedential holdings, will slither around the clear, precise, emphatic instructions of the Heller Court to uphold draconian gun laws that strike at the core, the essence, of the Second Amendment right--laws that, are, then, like Maryland's Firearm Safety Act, per se unconstitutional.

THE DISSENTING JUSTICES DISAGREEMENT WITH THE MAJORITY’S RULINGS IN HELLER IS NOT PREDICATED ON FINE POINTS OF LAW BUT RESTS ON PROFOUND PHILOSOPHICAL DIFFERENCES CONCERNING WHERE THE FOUNTAIN OF RIGHTS AND LIBERTIES OF MAN DRAW THEIR STRENGTH, THEIR VERY EXISTENCE: WHETHER FROM MAN-MADE SOCIAL CONSTRUCTS, AS THOSE DISSENTING JUSTICES BELIEVE, OR FROM RIGHTS AND LIBERTIES PREEXISTENT IN MAN THAT THEREFORE TRANSCEND ALL SOCIAL, POLITICAL, AND LEGAL CONSTRUCTS, AS THE MAJORITY OF THE HELLER COURT BELIEVES.

The dissenting Justices disagreed strenuously, mightily with the Majority’s reasoning, conclusions, and decisions in Heller. This disagreement between the liberal wing of the high Court and the Court’s conservative wing bespeaks more than a mere difference in approach to legal decision-making. No! The disputation is more profound and sublime. Disputation extends to the essence of a Jurist’s being. Writing for the Majority, Justice Scalia refers several times to the right of the people to keep and bear arms as a “natural right.” Reference to the phrase, “natural right” is not to be dismissed as affectation. Justice Antonin Scalia would have none of that. Every word the late Justice had penned has clear, precise, and critical meaning. The right of the people to keep and bear arms, as a natural right, means that the right exists inherently in man. The right of the American people to keep and bear arms is not a creation of man. It is not a creature of Statute. It is not to be deigned merely a social construct as a thing devoid of clear, irrefutable, power. No! The right to keep and bear arms exists over and above the Constitution itself. The right of the people to keep and bear arms stems from the Divine. The Right needs no proof. It needs no clarification. It needs no justification.The Bill of Rights as constituted in—as an imposing component of the United States Constitution   —acknowledges through the codification of the right of the people to keep and bear arms—the preeminence of the right that existed prior to the creation of the Country, as an independent, preeminent and Sovereign Nation. But the right of the people to keep and bear arms is not forsaken with the creation of the Nation State, nor is the right discounted or reduced in some sense through the creation of the Nation State. Rather, the Nation exalts the right, and, in so doing exalts the individual to be and remain individual.The right of the people to keep and bear arms is not and cannot be limited or constrained. Any attempt to do so by government operates as a betrayal of the relationship of individual to State. For this Nation State has, itself, limited powers. The People do not. Thus, it is that the Federal Government, through which the Nation State operates, obtains its power and authority by grace of the People. The People created the Government of the United States and it is within the power and right and duty of the American people to dismantle that Government if it devolves to tyranny. The Heller decision has, then, far-reaching implications, as the right of the people to keep and bear arms, preexistent in the people—and therefore existing in the people prior to the creation of the Constitution—reiterates the Framers’ intention that the Nation is the servant of the people, and not that the people are servants—merely subjects—of the State.Thus, Justice Scalia takes strong exception to Justice Stevens’ remark, set forth in Justice Stevens’ dissenting opinion in District of Columbia vs. Heller, 554 U.S. at 678, 679; 128 S. Ct. at 2845, that the Majority’s opinion, somehow rests for support merely upon Second Amendment “drafting history.”  Justice Scalia makes short work of that, saying: “Justice Stevens relies on the drafting history of the Second Amendment—the various proposals in the state conventions and the debates in Congress. It is dubious to rely on such history to interpret a text that was widely understood to codify a pre-existing right, rather than to fashion a new one.” District of Columbia vs. Heller, 554 U.S. at 603; 128 S. Ct. at 2804. Not surprisingly, none of the dissenting Justices—not one—accepts as axiomatic, as self-evident, that the right of the people to keep and bear arms is intrinsic to the very being of an American. Drafting history—however language of the Second Amendment is ultimately formulated, as Justice Scalia makes clear, does no more than to codify the right—the natural right of the people to keep and bear arms.A codification of a preexistent right is not equivalent to and, by logical implication, it is not instrumental in creating the right. Justice Scalia makes plain that the Second Amendment merely codifies a preexisting right; that the Framers’ did not create the right and did not importunately, intend to create rights. There is nothing in any of the various gyrations that the written Amendment went through to so much as suggest that the right of the people to keep and bear arms is to be construed as a right the framers had created for the American people. Such an idea would have been ridiculous to them and the suggestion would probably have been abhorrent to them, as well.

THE DISSENTING JUSTICES, IN HELLER, EITHER HAVE NO CONCEPTION OF THE FRAMERS’ BELIEF IN THE NOTION OF NATURAL RIGHTS AND LIBERTIES THAT EXIST IN MEN OR THEY DON’T CARE, PREFERRING INSTEAD TO READ OUR BILL OF RIGHTS IN RELATION TO THE CONSTITUTIONS AND BELIEF SYSTEMS OF OTHER COUNTRIES AS SUCH CONSTITUTIONS EXIST AT THE PRESENT TIME—TOGETHER WITH NOTIONS ANTITHETICAL TO THE VERY CONCEPT OF NATURAL RIGHTS AND LIBERTIES.

Justices Stevens and Breyer and the other Justices who dissented in the Heller case refuse to accept the Second Amendment as anything more or other than a creation of man. This is clear from their exposition. Thus, Justices Stevens and Breyer and the other dissenting Justices consider the right of the people to keep and bear arms as nothing more or other than a mere social construct. It isn’t remarkable, then, that the dissenting Justices would argue that the right of the people to keep and bear arms is tied merely to service in a militia; but, in so tying the right to the militia, the dissenting Justices do more than merely set forth a misguided interpretation of the Framers’ belief in the truth and sanctity of a natural right of the people to keep and bear arms, these Justices essentially eviscerate the right—a critical point that Justice Scalia, looking at the writings of a professor, judge, and Civil War commentator, Thomas Cooley, aptly propounds. See District of Columbia vs. Heller, 554 U.S. at 617; 128 S. Ct. at 2812.The point made—that the dissenting Justices’ position, tying the right of the people to keep and bear arms singularly to service in a militia, functions, logically, to destroy the right—is one that cannot be overemphasized. For it is not a minor point. It is one critical to understanding the logical impasse that exists between the liberal wing of the high Court and the conservative wing. For, differences in viewpoint commence and proceed on a very basic level. The differences in viewpoint suffuse and percolate through the reasoning of each of the two wings of the high Court and manifest as an irrefutable and irreconcilable conflict among the Justices on a level transcending mere disagreement about the law. The import of the Second Amendment as the dissenting Justices view it and as the high Court’s Majority view it may be likened to a chasm that cannot be bridged. The differences are deep-seated, intractable, grounded in unshakeable convictions of philosophical and ethical dimensions. They reflect distinctive notions concerning the relation of individual to State. The one accepting as axiomatic that rights and liberties are government constructs and, as such, those rights and liberties can be lawfully amended, disregarded, or erased altogether. The other accepting as self-evident that rights and liberties are indelibly imprinted in the individual—existing beyond space and time—part of the soul of the individual, critical to a person’s essence, and beyond a government’s lawful ability to change, disregard or eliminate.We continue with our exposition of Kolbe and the importance of Heller in Second Amendment case decisions in Part Seven of this series.________________________*Case History: Kolbe vs. O’Malley, 42. F. Supp. 3d 768 (D. Md. 2014); vacated and remanded, Kolbe vs. Hogan, 813 F.3d 160 (4^th Cir. 2016); rev’d en banc, Kolbe vs. Hogan, 849 F.3d 114 (4^th Cir. 2017)________________________Copyright © 2017 Roger J Katz (Towne Criour), Stephen L. D’Andrilli (Publius) All Rights Reserved. 

MARYLAND’S FIREARM SAFETY ACT: ATTACKING THE CORE OF THE SECOND AMENDMENT THROUGH THE VENEER OF PROMOTING PUBLIC SAFETY.

MARYLAND’S FIREARM SAFETY ACT: ATTACKING THE CORE OF THE SECOND AMENDMENT THROUGH THE VENEER OF PROMOTING PUBLIC SAFETY.

A Court Of Review Is Blind To Inappropriate, And Unlawful Government Action When A Court Of Review Is Philosophically Predisposed To Inhibit The Right Of The People To Keep And Bear Arms.

KOLBE VS. HOGAN:

PART FIVE

HAD THE DISTRICT COURT OF MARYLAND REVIEWED MARYLAND’S FIREARM SAFETY ACT AS THE HELLER COURT REQUIRED, THE DISTRICT COURT WOULD HAVE SEEN THROUGH THE CHARADE OF THAT RESTRICTIVE GUN ACT THAT ATTACKS THE CORE OF THE SECOND AMENDMENT.THE U.S. SUPREME COURT MAJORITY CAUTIONED, IN HELLER, AGAINST USE OF ANY TRADITIONAL STANDARD OF REVIEW TO TEST THE CONSTITUTIONALITY OF A LAW THAT IMPACTS THE CORE OF THE SECOND AMENDMENT.The Arbalest Quarrel continues with its comprehensive, in depth analysis of Kolbe in light of the seminal U.S. Supreme Court Heller case.Realizing the futility of articulating any standard of review for testing the constitutionality of government action that attacks the very core--the very essence--of a fundamental right, the Heller majority realized the need to dispense with all traditional standards of review and all hybrid versions of conventional standards of review in those instances where governmental action—in the Heller case, a total ban on firearms that the public traditionally and commonly uses for self-defense, namely firearms categorized as handguns, be those handguns semiautomatic pistols or single or double action revolvers—attacks the very essence, or core of the right. Justice Breyer, himself, who wrote a dissenting opinion in Heller, realized the conundrum posed in the application of traditional standards of review for testing the constitutionality of government action that is directed to the core of a fundamental right.The dissenting Justice, Stephen Breyer, did realize, perceptively, that application of even a stringent standard, strict scrutiny—no less than application of the most relaxed standard of review, rational basis—would not be a fair standard for a Court to employ to test the lawfulness of a governmental action that is directed to the core of a fundamental right because Courts could still come to the wrong conclusion and effectively destroy a fundamental right. Breyer therefore thought that his novel interest-balancing inquiry would overcome problems associated with conventional standards of review. In support of use of his novel interest-balancing inquiry to test the constitutionality of the District of Columbia’s absolute prohibition on possession of handguns in the District, Justice Breyer said this (and we quote Justice Breyer, at length):“In weighing needs and burdens [utilizing my interest-balancing standard to test the constitutionality of the District of Columbia’s absolute prohibition on possession of handguns in the District] we must take account of the possibility that there are reasonable, but less restrictive, alternatives. Are there other potential measures that might similarly promote the same goals while imposing lesser restrictions [Citation Omitted]? Here I see none. The reason there is no clearly superior, less restrictive alternative to the District’s handgun ban is that the ban’s very objective is to reduce significantly the number of handguns in the District, say, for example, by allowing a law enforcement officer immediately to assume that any handgun he sees is an illegal handgun. And there is no plausible way to achieve that objective other than to ban the guns. It does not help respondent’s [D.C. Government’s] case to describe the District’s objective more generally as an “effort to diminish the dangers associated with guns.” That is because the very attributes that make handguns particularly useful for self-defense are also what make them particularly dangerous. That they are easy to hold and control means that they are easier for children to use [Citation omitted]. That they are maneuverable and permit a free hand likely contributes to the fact that they are by far the firearm of choice for crimes such as rape and robbery [Citations omitted]. This symmetry suggests that any measure less restrictive in respect to the use of handguns for self-defense will, to that same extent, prove less effective in preventing the use of handguns for illicit purposes. If a resident has a handgun in the home that he can use for self-defense, then he has a handgun in the home that he can use to commit suicide or engage in acts of domestic violence [Citations omitted]. If it is indeed the case, as the District believes, that the number of guns contributes to the number of gun-related crimes, accidents, and deaths, then, although there may be less restrictive, less effective substitutes for an outright ban, there is no less restrictive equivalent of an outright ban.”Justice Breyer concludes that no less restrictive means exists to promote the goal of promoting public safety than the District of Columbia’s total ban on handguns promotes and that, under the strict scrutiny standard, a total ban on handguns would therefore pass judicial scrutiny and therefore be found constitutional even though the Second Amendment right of the people to keep and bear arms is clearly burdened. As he says:“The upshot is that the District’s objectives are compelling; its predictive judgments as to its law’s tendency to achieve those objectives are adequately supported; the law does impose a burden upon any self-defense interest that the Amendment seeks to secure; and there is no clear less restrictive alternative. I turn now to the final portion of the ‘permissible regulation’ question: Does the District's law disproportionately burden Amendment-protected interests? Several considerations, taken together, convince me that it does not.”So, is that the end of the inquiry? Does Justice Breyer assert that the D.C. handgun ban is constitutional even though a total ban on possession of handguns clearly burdens, and in a substantial way, the American citizen’s exercise of his or her fundamental right? No. Justice Breyer says that application of his standard is superior to that of application of even a stringent standard like strict scrutiny, for there is a second part to Justice Breyer’s test, even though he has already inferred that the burden on those who seek to exercise their Second Amendment right is substantial." Justice Breyer goes on to say (and once again we quote Justice Breyer at length):“First, the District law is tailored to the life-threatening problems it attempts to address. The law concerns one class of weapons, handguns, leaving residents free to possess shotguns and rifles, along with ammunition. The area that falls within its scope is totally urban [Citation omitted]. That urban area suffers from a serious handgun-fatality problem. The District's law directly aims at that compelling problem. And there is no less restrictive way to achieve the problem-related benefits that it seeks.”“Second, the self-defense interest in maintaining loaded handguns in the home to shoot intruders is not the primary interest, but at most a subsidiary interest, that the Second Amendment seeks to serve. The Second Amendment’s language, while speaking of a ‘Militia,’ says nothing of ‘self-defense.’ As Justice Stevens points out, the Second Amendment;s drafting history shows that the language reflects the Framers' primary, if not exclusive, objective [Citation omitted]. And the majority itself says that ‘the threat that the new Federal Government would destroy the citizens' militia by taking away their arms was the reason that right . . . was codified in a written Constitution’ [Citation omitted]. The way in which the Amendment's operative clause seeks to promote that interest--by protecting a right ‘to keep and bear Arms’ may in fact help further an interest in self-defense. But a factual connection falls far short of a primary objective. The Amendment itself tells us that militia preservation was first and foremost in the Framers’ minds. See Miller, 307 U.S., at 178, 59 S. Ct. 816, 83 L. Ed. 1206 (‘With obvious purpose to assure the continuation and render possible the effectiveness of [militia] forces the declaration and guarantee of the Second Amendment were made,’ and the Amendment ‘must be interpreted and applied with that end in view’).”“Further, any self-defense interest at the time of the framing could not have focused exclusively upon urban-crime-related dangers. Two hundred years ago, most Americans, many living on the frontier, would likely have thought of self-defense primarily in terms of outbreaks of fighting with Indian tribes, rebellions such as Shays' Rebellion, marauders, and crime-related dangers to travelers on the roads, on footpaths, or along waterways [Citation omitted]. Insofar as the Framers focused at all on the tiny fraction of the population living in large cities, they would have been aware that these city dwellers were subject to firearm restrictions that their rural counterparts were not [Citation omitted]. They were likely then to have thought of a right to keep loaded handguns in homes to confront intruders in urban settings as central. And the subsequent development of modern urban police departments, by diminishing the need to keep loaded guns nearby in case of intruders, would have moved any such right even further away from the heart of the Amendment's more basic protective ends [Citation omitted].”“Nor, for that matter, am I aware of any evidence that handguns in particular were central to the Framers’ conception of the Second Amendment. The lists of militia-related weapons in the late-18th-century state statutes appear primarily to refer to other sorts of weapons, muskets in particular.”Justice Breyer continues with his polemic, adding: “Regardless, why would the [Heller] majority require a precise colonial regulatory analogue in order to save a modern gun regulation from constitutional challenge?” The answer to Justice Breyer's question should be obvious to anyone who recognizes the importance of the Second Amendment--as much now, in the present, as then, in the past. The Heller majority felt compelled to respond to antigun critics, including, most notably, those who, like Justice Breyer and Justice Stevens, curiously enough, have, in extrajudicial commentary and publications, made clear their desire to interpose foreign laws foreign jurisprudential values--alien to our unique history, our unique laws, and our unique Constitution--into their own methodological approach to U.S. Supreme Court case analysis and decision-making. Since the laws of Countries such as Great Britain and Australia, for example, have nothing even remotely analogous to our Second Amendment, one should reasonably conclude that anything set forth in the laws and jurisprudence of those Nations would be legally irrelevant to and certainly impossible to reconcile with our own system of laws and jurisprudence should anyone wish to insinuate such laws and jurisprudence into our case law anyway.Justice Breyer concludes his polemic, by asserting essentially the argument we hear ad nauseum from antigun groups. It is this: Americans should leave to “democratically elected officials” of government the power to impose government's will on the rest of us because government knows what’s best for all of us, even unto the veritable destruction of our fundamental rights and liberties. Justice Breyer asserts,“‘As important, the majority’s decision threatens severely to limit the ability of more knowledgeable, democratically elected officials to deal with gun-related problems. The majority says that it leaves the District ‘a variety of tools for combating’ such problems [Citation omitted]. It fails to list even one seemingly adequate replacement for the law it strikes down. I can understand how reasonable individuals can disagree about the merits of strict gun control as a crime-control measure, even in a totally urbanized area. But I cannot understand how one can take from the elected branches of government the right to decide whether to insist upon a handgun-free urban populace in a city now facing a serious crime problem and which, in the future, could well face environmental or other emergencies that threaten the breakdown of law and order.”So it is that Justice Breyer would apply his novel “interest-balancing” inquiry to test the lawfulness, the very constitutionality, of Maryland's Firearm Safety Act, fully believing in and having complete faith in the usefulness of his novel standard for application to governmental actions that attack the core of the Second Amendment. Having, then, utilized his interest-balancing inquiry standard, he seems oblivious to the fact that, even with his preferred new test, no less than with any of the other conventional standards, he, along with anyone else who might be tempted to use his novel approach, would not be prevented from automatically ordaining the result wanted--which means that, notwithstanding Justice Breyer's conviction that his novel test would preclude a foreordained conclusion, a Court that finds the Second Amendment repugnant will still come to the conclusion desired: a finding that governmental action that effectively bans the lawful possession of an entire category of firearms and that negatively impacts the core of the Second Amendment is lawful when, in fact, it isn’t. Indeed, one finds that Justice Breyer was not immune to the fatal flaw that can and often is the bane of all otherwise brilliant Jurists. We find that the fatal flaw that exists is found to reside less in a presumed fault with any conventional or fanciful approach used by a Jurist to test the constitutionality of a governmental action than in the depth of the Jurist's very being. That is to say, the fault, we see, rests, first and foremost, in the Jurist's heart, not in the Jurist's analytical and intellectual acumen. The late Justice Scalia recognized this, which is why he felt it necessary to discard any Judge-made test that might be applied to governmental actions that target the core of a fundamental right. Sadly, Justice Breyer did not see this, even when Justice Scalia pointed out the fatal flaw, which he, tactfully ascribed to Justice Breyer's interest-balancing inquiry, rather than to Justice Breyer, himself.

INTEREST-BALANCING INQUIRY ANALYSIS SHOULD NEVER BE USED TO TEST THE CONSTITUTIONALITY OF GOVERNMENTAL ACTION THAT ATTACKS THE CORE OF THE SECOND AMENDMENT RIGHT OF THE PEOPLE TO KEEP AND BEAR ARMS.

What more do we find problematic in Justice Breyer's Dissenting Opinion? Justice Breyer quibbles when he suggests that the Framers of the Constitution had considered muskets--Americans' early long guns, rather than handguns--as the sorts of weapons that fall under the purview of Second Amendment protection. But, there is really nothing concrete to suggest that the Framers of the Constitution had sought to specify those particular weapons that fall within the core of the Second Amendment protection and those that do not. Had the Framers had any idea that, in the future, there would exist individuals and groups whose repugnance of firearms was so strong and whose efforts to abolish the right to keep and bear arms so emphatic--who would go to such great lengths to abolish that right, working methodically and inexorably to ban first one category of weapons and then another until the entirety of weapons in civilian hands would effectively be banned by Statute, irrespective of the language of the Constitution--then, we suspect, the Framers' codification of the natural and fundamental right of the people to keep and bear arms in the Constitution would have been set forth with perspicuity. That the Framers thought the right codified in the Second Amendment so clear and obvious, and the need for it so transparent, they obviously didn't feel further explication in the language of the Amendment necessary.Since Heller had set forth in case law what had previously been set forth in most of the academic articles on the subject—the fact that the right of the people to keep and bear arms is an individual right, not merely a collective right, relegated to one's service in a militia—antigun groups are now forced to attack the fundamental right of the people to keep and bear arms, one category of weaponry at a time. That is a slow, tedious process for them and one that antigun groups were, it seems, loathe to contend with but realize now they must contend with. So they are now, once again, since the early 1990's, seeking to ban individual categories of weapons—one category at a time, until all firearms are banned. Exemptions would exist for certain groups such as police and the military. But, those exemptions would be stated with specificity and very narrowly drawn.Antigun groups have found that the appellation, 'assault weapon' is a useful category because they can place a substantially large number of firearms in that makeshift category. The goal of antigun groups is to ban all semiautomatic weapons. So, if they are successful through use of the nomenclature, 'assault weapon,' as a prohibited category of weapons in State Statute, we will see more and more semiautomatic weapons placed in that category until all semiautomatic weapons are banned.The loss of an antigun proponent, Judge Merrick Garland does not sit well with antigun proponents. Judge Garland might have sat on the high Court had the U.S. Senate Judiciary Committee capitulated to cajoling from Congressional Democrats and cajoling from the mainstream media. Judge Garland would now sit on the high Court, and Heller might, eventually, be overturned outright. And, had Hillary Clinton, a virulent attack dog, been elected U.S. President, we would see much of the Second Amendment dismantled by Executive fiat. Fortunately, neither one of these two worst cases scenarios came to pass. That doesn't mean that antigun groups and antigun State Legislatures, and antigun members of the U.S. Congress, are not actively working, even as these words are being written, to weaken the Second Amendment. Those Americans who cherish their Bill of Rights and, especially, the sacred Second Amendment, must remain ever vigilant.In reading Heller, one must keep uppermost in mind that Justice Breyer wrote a dissenting opinion, not a concurring opinion, where, utilizing his novel interest-balancing inquiry test, he found the District of Columbia’s ban on possession of handguns not to be unconstitutional even though the D.C. handgun ban infringed the very core of, the very essence of the Second Amendment. Yet, for all of his seemingly carefully executed, assiduous remarks, Justice Breyer ultimately “makes” Justice Scalia’s case for the futility of applying any standard of review to what is clearly a facially unconstitutional act. Justice Breyer ultimately presents, quite eloquently, actually, how a seemingly meticulously crafted argument can have absolutely devastating consequences for Americans if Justice Breyer were writing for the Majority in Heller, rather than for the Dissent. The "Pen" can destroy the Bill of Rights even more effectively than a force of arms.As Justice Scalia made eminently clear, albeit tacitly, application of a standard of a conventional standard of review or application of Breyer’s novel interest-balancing inquiry to governmental action that attacks the core of the Second Amendment would still not prevent a Court that is philosophically opposed to the natural, right codified in the Second Amendment from drawing the wrong conclusion--a conclusion a Court wants: namely that an attack on the core of the Second Amendment will nonetheless pass judicial scrutiny, when such governmental action should not--when such governmental action should be struck down, and struck down hard.Indeed, the interest-balancing inquiry test that Justice Breyer devised and used in Heller demonstrates the futility of employing a makeshift standard, any more than any of the conventional standards, because, once having applied his test, Justice Breyer finds--no less than would he find through application of rational basis, intermediate scrutiny, or strict scrutiny--the result he wants, the result he knew he would obtain: namely that a clearly unconstitutional law—the District of Columbia’s total ban on possession of handguns—is lawful.Consider: if utilization of any test, rational basis, intermediate scrutiny, strict scrutiny, or Justice Breyer's interest-balancing inquiry test cannot reasonably guarantee a sound conclusion, then perhaps the U.S. Supreme Court should consider dispensing with--scrapping--all of them, certainly where it is clear that governmental action is targeting the very core, the very essence of a fundamental right. A Court should not bother to go through, should not have to go through, numerous intricate, tortuous gyrations, pretending or fooling itself that it is possible to salvage a government action that is designed, on its face, to destroy a fundamental right, codified in the Bill of Rights. For, a government--be it federal, State, or local--can, under no circumstance or set of circumstances, constitutionally, rationally, legitimately, justify burdening the core, the very essence of our Constitutional rights and liberties.How, then, ought a Court of competent jurisdiction proceed? A Court should simply ascertain, first, whether a governmental action is attacking the core of a sacred right. If so, then, that should end the matter. No further analysis is needed. The governmental action should indeed be struck down; must be struck down. There is no need to beat around the bush on this. The Heller Majority Opinion, penned by Justice Scalia, made that point abundantly clear.

PROCEEDING FURTHER WITH OUR ANALYSIS:

Commencing with the U.S. District Court of Maryland opinion, having, as the lower Court, the first look at the case presented to it by Plaintiff, Kolbe, and others, the District Court failed to heed Heller, falling into the same trap that Justice Breyer fell into.The District Court of Maryland could not, though, employ Justice Breyer’s interest-balancing inquiry standard—much as it would have liked to—as that test was one devised by the Dissenting Opinion Justice, not the Majority, and, so, the case analysis presented by the Dissenting Justice in Heller, does not have precedential value.What, then, did the District Court of Maryland do? The District Court of Maryland employed as a standard of review, a fallback—in this case, intermediate scrutiny--and the Court did so on the mistaken belief that the Heller Court Majority’s failure to clearly articulate a test--the failure of the Heller Court's Majority to set forth, convincingly, at least to the satisfaction of the lower District Court of Maryland--a test or standard of review through which a Court might definitively determine, definitively ascertain, the constitutionality of a government action, meant that a lower Court is free to utilize any standard of review it wants, consistent—so it is—with prior rulings, in this instance, Fourth Circuit Court rulings, rulings, then, that precede Heller. The District Court of Maryland then fooled itself into believing it could apply its test reasonably, rationally, judicially, to reach the correct conclusion. But the Court could not do so and did not do so. The District Court reached a wrong conclusion: finding Maryland’s “Firearm Safety Act” to be lawful, constitutional, notwithstanding that implementation of it burdens the exercise of the fundamental right of the people to keep and bear arms, and that the government action does so in an extensive, intensive, and inordinately intrusive manner.In asserting the deficiencies inherent in interest-balancing, for ascertaining the moral good of actions, the great German Philosopher, Immanuel Kant, said this: “Woe unto him who searches in the winding paths of the theory of interest-balancing for some technique to uphold the debasing of human dignity.” “The Metaphysics of Morals 141 (Mary Gregor trans., 1991),” as cited in “Essay: In God’s Image: The Religious Imperative Of Equality Under Law,”  99 Colum. L. Rev. 1608, 1624 (October 1999). We continue with our in-depth analysis of the dangerous and horrible Kolbe decision in Part Six of this ongoing series of articles.________________________Copyright © 2017 Roger J Katz (Towne Criour), Stephen L. D’Andrilli (Publius) All Rights Reserved.      

WHERE DOES THE MOST SERIOUS THREAT TO THE PRESERVATION OF THE FUNDAMENTAL RIGHTS AND LIBERTIES OF AMERICANS REST? FROM CONGRESS? FROM THE PRESS? FROM THE PRESIDENT? FROM ALL THREE TAKEN TOGETHER? THE ANSWER MAY SURPRISE YOU!

KOLBE VS. HOGAN:

INTERIM REMARKS

The Arbalest Quarrel has been working steadily on a systematic and comprehensive analysis of the Kolbe case. We are taking a short timeout with this segment, subtitled, “Interim Remarks,” to place the substantial time we are devoting to Kolbe in proper perspective. We feel our analysis has singular importance now with the Senate Judiciary Hearings on the Gorsuch confirmation that took place these past few days, and which have concluded. Senate Democrats are now filibustering, to prevent a vote on the confirmation of Judge Gorsuch as Associate Justice on the U.S. Supreme Court.The Arbalest Quarrel will continue its comprehensive, analytical exposition of the Kolbe case, considering its negative impact on the Second Amendment and considering, as well, the failure of the Fourth Circuit to take proper note of and abide by the rulings and reasoning of the high Court in the seminal Heller case. The high Court provided clear guidance to the lower Courts for the proper handling of Second Amendment cases where government action attacks the core of the Second Amendment.What is unfortunately abundantly clear now is that lower federal Courts will, at times, ignore rulings and reasoning and guidance of the U.S. Supreme Court if those lower federal Courts do not agree with the methodology, the rulings, the reasoning, and the jurisprudential underpinnings of the law as reflected in specific cases. So it is that we see some United States Circuits ignoring the precepts of Heller. But, regardless of a jurist’s political and social philosophy, precedent must not be ignored. Precedent must never be ignored. All too often as we see, though, judicial precedent is ignored, and it is, not infrequently, ignored in the most important cases: those cases negatively impacting our most sacred rights and liberties.If anything came out of the Neil Gorsuch confirmation hearings —where Judge Gorsuch had to suffer through days of torturous questioning and insufferable pontificating of Senate Democrats sitting on the Judiciary Committee—the public has come to see that Judge Gorsuch believes fervently in the importance of legal precedent as the cornerstone of our system of laws. This is necessary if our system of laws is not to be reduced to a set of discordant, inconsistent body of law, providing no guidance on which Courts may reasonably rely.The public has also seen that Judge Gorsuch gives credence to the law enacted by Congress, as written. Judge Gorsuch does not allow personal feeling to sway his rulings. That seems to bother some members of the Senate Judiciary Committee. It should, though, give the public hope. For, the public can rest assured that Judge Gorsuch, sitting on the high Court as an Associate Justice, will demonstrate proper restraint—applying the law to the facts as that law exists, and not as he may, perhaps, rather like the law to be.What the law ought to be is subject matter for legal and political philosophical musings set down in essays. When a judge opines on a case before that judge, the jurist is not to render judgment on what the law ought to be but must predicate his or her rulings on what the state of the law is, and elucidate findings of fact and conclusions of law on that basis and on that basis alone. Frankly, all too often we do not see this. The worst and most dangerous example of improper legal judgment is judgment reflected in personal feeling peppered, if only tacitly, but unmistakably, in legal opinions—personal feeling overriding judicial restraint in matters directly impacting the Bill of Rights, not least of which, we see on the continued assault against the clear meaning and purpose of the Second Amendment.The rabid assault on the sanctity of the Second Amendment to the U.S. Constitution continues unabated notwithstanding the clear reasoning of and holdings in the Heller case. But, where do the greatest and gravest threats rest?Contrary to popular opinion on the matter, the greatest threat to our Bill of Rights, generally, and the gravest danger to our Second Amendment, particularly, rests less upon the assertive, pretentious, sanctimonious, noxious rhetorical flourishes and rancor of some elected officials who disdainfully, arrogantly voice their antipathy toward the Second Amendment—even if that rancor is masked through the obligatory assertion, “but of course I support the Second Amendment,” as if, through the addition of that assertion to the official’s polemic, the elected official may effectively hide his or her clear distaste toward the very idea that the average, law-abiding, rational, American citizen—not working as a policeman, or as a soldier, or as a licensed bodyguard, or as a government or private security officer, or in some unknown, secretive governmental capacity, but merely, solely as a civilian—should actually ever be armed with—horror of horrors—a firearm.And, contrary to popular opinion on the matter, the greatest threat to our Bill of Rights, generally, and the gravest danger to our Second Amendment, particularly, rests less upon the loud, vociferous, discordant voice of writers, editors, and owners of mainstream media whose antipathy toward the right of the people to keep and bear arms is well-known by the public, and is at once both longstanding and supremely malevolent.Rather, the greatest threat to our Bill of Rights, generally, and the gravest danger to our Second Amendment, particularly, rests more on the actions of activist Jurists of the federal District and Circuit Courts whose arcane opinions, seemingly well-learned and well-reasoned, merely obscure an intent to defeat the Second Amendment despite clear guidance from the U.S. Supreme Court.The threat posed by an activist Judiciary to the preservation of our basic liberties, as envisioned by the founders of our Free Republic is very real, not to be reasonably denied. And that threat posed to our Second Amendment right of the people to keep and bear arms is ultimately greater than that posed by either a recalcitrant Congress or a derelict Press.The danger posed by an activist Judiciary is greater and graver to our sacred rights and liberties because the Judiciary is the final arbiter of what our law means and, therefore, how the law impacts our lives.As our Constitution sets forth, Congress makes the law we live by. The Executive enforces the law that Congress enacts. But, as the grand interpreter of the law—what the law means and whether the law is consistent with the U.S. Constitution—whether a law shall operate at all, and, if so, the effect it has on our lives—it is for the Judiciary to say. It is not for Congress to say; and it is not for the U.S. President to say; and it is certainly, not for the Press to tell the American people what the law of the Land is.No! The Judiciary, alone, is the final arbiter of what the law is. Some may think the Judiciary wields less power than the two other Branches of Government. After all, the Judiciary does not have the power of the purse, which, along with the unequivocal and singular power to make law, exists in Congress alone. The Judiciary does not wield power over the military, or over the federal police agencies, or over the vast intelligence apparatuses, all of which fall within the direct purview of the Executive. But, as the final arbiter of our law—what the law means and how the law is to be applied—assuming we remain a Nation ruled by law, truly ruled by law, and not by men—no American should underestimate the power the Judiciary wields over our lives.Even the most uninformed citizens among us knows full well the power of the Judiciary in the matter of immigration. That has been on full display. That power can and, most recently has tied the hands of the U.S. President, as Commander in Chief of our Nation, taxed with the singular duty to protect the People of our great Nation from all threats both foreign and domestic.President Donald Trump, promising to do his best to defend this Nation against imminent and serious threat posed by Islamic terrorists —clearly among his most important duties as U.S. President—has been constrained and frustrated in that effort due to the machinations of the U.S. Court of Appeals for the Ninth Circuit and thereafter by the U.S. District Court of Hawaii—Courts that have, through their actions, placed the welfare of this Nation and the physical safety of its citizens at considerable risk as those Courts, through their opinions, demonstrate that the wishes of non-citizens who seek to emigrate to America from failed States are to be given more consideration than are the health and well-being of this Nation and the physical safety of American citizens. And, it doesn’t stop there, with immigration.Activist U.S. District Court and U.S. Circuit Court of Appeals judges express their disdain of the Second Amendment and their continued defiance of the U.S. Supreme Court through decisions that rein in the right of the people to keep and bear arms. They denigrate the import and purport of our Second Amendment through manipulation of legal doctrine.If our pronouncement be undiplomatic, untactful toward the Judiciary, so be it. This is not a time for niceties. For the decisions of the Judiciary—the words expressed in opinions—are proof of political activism that strike at the heart of the health, welfare, and safety of our Nation and at the import and purport of our Bill of Rights.No less has the Fourth Circuit, in our estimate, manipulated legal doctrine, in denigration of U.S. Supreme Court precedent. Obscuring opinion in arcane legalese does little to disguise the fact that legal opinions coming out of this Circuit in the recent Kolbe case are antithetical to and involve a misunderstanding—whether consciously deliberate or incautiously but honestly mistaken—of the rulings and reasoning of the Heller Court.The Fourth Circuit relies for support, in part, on similar rulings of its sister Courts, most notably, those of the Second, Third, Seventh, and Ninth Circuits. By relying for support on opinions of their sister Courts, the Fourth Circuit aims, it seems to us, to deflect honest criticism away from itself, thereby suggesting that similar rulings of these other Courts that belie the rulings, reasoning, and clear guidance of the majority opinion, penned by Justice Scalia, in Heller, do somehow demonstrate that the Fourth Circuit does give due consideration to the holdings and reasoning of Heller, rather than contradicting the holdings and reasoning of that seminal Second Amendment case. But that is not the case at all.We firmly believe—as we have explained and will elucidate yet further—the Fourth Circuit Court of Appeals, en banc, having taken its cue from the U.S. District Court of Maryland and from the opinions of various sister Courts, strained to find a loophole in the Heller case to justify finding Maryland’s Firearm Safety Act to be legal. There isn’t any. So, the Fourth Circuit created one out of whole cloth.The gravest error of the Courts of the Fourth Circuit consists in the application of a standard of review that the Heller Court specifically rejected. Proceeding from an improper footing, an erroneous decision—but one the Fourth Circuit obviously wanted—could not but follow from the application of the wrong standard.Happy the Fourth Circuit would be, as would other United States Circuit Courts that elicit similar sympathies, if Heller were simply overturned. Were Judge Merrick Garland to have sat on the high Court, that pipedream for the antigun movement would come to pass. There is no doubt about that. Clearly, that was one end that Barack Obama had in mind which is why he nominated Merrick Garland to Associate Justice of the U.S. Supreme Court. It was one end that Hillary Clinton would have had in mind were she to have been elected U.S. President. For, she would certainly have been elated to sit Judge Garland on the high Court. Thankfully, neither the previous U.S. President or the one who would be Queen will never get their wish.If Judge Neil Gorsuch is confirmed and he should be and undoubtedly will be—despite a Democratic threat of filibuster of his confirmation which is now unfolding—the Heller case should remain untouched—even if ignored by various Circuit Courts as we see in Kolbe. Heller is the first case that extends—albeit tacitly—the idea that, where the very core of a fundamental right is attacked in a government action—a facial challenge to that governmental action will be given proper consideration.The U.S. Supreme Court made clear enough in Heller, to the surprise and, we are sure, much to the consternation of the D.C. Government and to the U.S. Circuit Court of Appeals for the District of Columbia, that the U.S. Supreme Court would not shrink from applying facial challenge methodology to an action by government that attacks the core of the Second Amendment even if that had not previously been done. We should see that methodology applied as well in Kolbe if Kolbe or a similar case is heard by the U.S. Supreme Court. We hope and trust and pray that Judge Gorsuch sits on the high Court as the Ninth Justice when this happens.We continue with our analysis of the Kolbe case with Part Five of our multi-series article, to be posted shortly._________________________Copyright © 2017 Roger J Katz (Towne Criour), Stephen L. D’Andrilli (Publius) All Rights Reserved. 

KOLBE VS. HOGAN: THE U.S. DISTRICT COURT OF MARYLAND IGNORES U.S. SUPREME COURT PRECEDENT, OPENLY AND BLATANTLY DEFYING HELLER.

PART FOUR

The Maryland District Court incorrectly and improperly interpreted Justice Scalia as saying: “the Supreme Court held in Heller I* that a heightened level of scrutiny applies to regulations found to burden the Second Amendment right, 554 U.S. at 628 n.27, but did not further articulate whether and when strict or intermediate scrutiny applies.” Kolbe vs. O’Malley, 42 F. Supp. 3d 768, 789 (U.S. Dist. Ct. Md. 2014), affirmed in part, vacated in part, and remanded to the District Court by the three Judge Panel in Kolbe vs. Hogan, 813 F.3d 160 (4th Cir. Md., 2016). It was not by accident that the high Court in Heller refrained from articulating when intermediate scrutiny or strict scrutiny, as a legal standard, applies to test the constitutionality of legislation impinging on the Second Amendment. The Heller Court deliberately refrained from doing so.The high Court intentionally refrained from articulating any standard of review—whether rational basis, intermediate scrutiny, strict scrutiny, some hybrid standard, or a completely new and novel standard of review, such as the one Justice Breyer devised for Heller, in his dissenting opinion—because Justice Scalia, who wrote the majority’s opinion, knew that any standard a lower court or the U.S. Supreme Court utilized to test the constitutionality of legislation, impinging upon and directly infringing the right of the people to keep and bear arms, would likely fail if a lower Court—antithetical to the very existence of the Second Amendment—wished to uphold an unconstitutional law. The decision and reasoning of the U.S. District Court of Maryland in Kolbe vs. O’Malley demonstrably bears out Justice Scalia’s concern.Justice Scalia knew full well a lower Court would foreordain the result it wanted, through any standard of review the high Court might articulate. Thus, a lower Court could cloak a wrongly decided case by simply pointing to the standard the high Court happens to tell a lower Court to use, and, in so “applying” that standard, uphold a facially unconstitutional law, finding the law to be perfectly valid and, hence, lawful, when in fact it isn’t.Justice Scalia apparently felt confident that, by refusing to articulate a standard of review for testing the constitutionality of a government action that directly impinges and infringes the core of the Second Amendment, a lower Court will draw the right conclusion and strike down such government action—even if a lower Court does so reluctantly because it happens to harbor animosity toward the Second Amendment. But, Justice Scalia did not, apparently, realize the lengths to which a lower Court would go to defend governmental actions directed to the core of the Second Amendment even if such Courts flirt with injudicious defiance of clear U.S. Supreme Court precedent.The District Court of Maryland extrapolated from a totally erroneous interpretation of Heller, relying on exposition from an earlier Fourth Circuit case that reflects law decidedly and decisively overridden by Heller. The District Court of Maryland said, “From the Court’s holding in Heller I, the Fourth Circuit has subsequently determined that whether strict or intermediate scrutiny applies requires the court to consider ‘the nature of the person’s Second Amendment interest, the extent to which those interests are burdened by government regulation, and the strength of the government’s justifications for the regulation.’” Kolbe vs. O’Malley, 42 F. Supp. 3d at 789, relying for support on United States v. Masciandaro, 638 F.3d 458, 470 (4th Cir. 2011).The District Court’s understanding of Heller is flat-out wrong. The District Court points for support, for its reasoning and for its decision, to parenthetical material, dicta, appearing in Heller. Dicta, though, does not constitute the salient ruling of the high Court—hence the reason that such material appears in a footnote and not in the body of the high Court’s opinion.In that footnote to the Heller Opinion, Justice Scalia was doing nothing more than responding to Justice Breyer’s comment—a comment that appeared in Justice Breyer’s dissenting opinion. Justice Scalia was simply agreeing with Breyer that rational basis—the lowest standard of review to test the constitutionality of government action—is never an appropriate standard when that government action directly and clearly and fatally impinges on and infringes an enumerated right, such as the Second Amendment. What Justice Scalia said in “fn27,” which the District Court refers to, and as we pointed out in Part Three of this series, and which bears repeating is this:“Justice Breyer correctly notes that this law, like almost all laws, would pass rational-basis scrutiny [citation omitted]. But rational-basis scrutiny is a mode of analysis we have used when evaluating laws under constitutional commands that are themselves prohibitions on irrational laws. [citation omitted]. In those cases, ‘rational basis’ is not just the standard of scrutiny, but the very substance of the constitutional guarantee. Obviously, the same test could not be used to evaluate the extent to which a legislature may regulate a specific, enumerated right, be it the freedom of speech, the guarantee against double jeopardy, the right to counsel, or the right to keep and bear arms. See United States v. Carolene Products Co., 304 U.S. 144, 152, n 4, 58 S. Ct. 778, 82 L. Ed. 1234 (1938) (‘There may be narrower scope for operation of the presumption of constitutionality [i.e., narrower than that provided by rational-basis review] when legislation appears on its face to be within a specific prohibition of the Constitution, such as those of the first ten amendments. . . .’ If all that was required to overcome the right to keep and bear arms was a rational basis, the Second Amendment would be redundant with the separate constitutional prohibitions on irrational laws, and would have no effect."From these remarks the U.S. District Court for the District of Maryland felt justified, nonetheless, to apply some standard of review—when the Heller majority did not warrant use of any standard of review to test the constitutionality of governmental action that impinges on and infringes the very core of the Second Amendment. Justice Scalia, writing for the majority in Heller, made abundantly clear that all standards of review are inadequate when the core of the Second Amendment is attacked.Justice Scalia therefore refused to be pinned down to elucidating a test to be used by the courts when analyzing whether a given law that operates to ban an entire category of weapons that the public commonly uses for self-defense might feasibly survive a constitutional challenge. Justice Scalia, writing for the majority, refused to be pinned down because he realized that, under any of the standard tests Court’s employ to test the constitutionality of a legislative act—specifically where a legislature attacks a core component of the Second Amendment—will often be found to be constitutional if the Court and an antigun government are of like mind.Responding to Justice Breyer’s criticism of the majority for not elucidating a standard of review, Justice Scalia said this:"Justice Breyer moves on to make a broad jurisprudential point: He criticizes us for declining to establish a level of scrutiny for evaluating Second Amendment restrictions. He proposes, explicitly at least, none of the traditionally expressed levels (strict scrutiny, intermediate scrutiny, rational basis), but rather a judge-empowering ‘interest-balancing inquiry’ that ‘asks whether the statute burdens a protected interest in a way or to an extent that is out of proportion to the statute’s salutary effects upon other important governmental interests.’ [citation omitted]. After an exhaustive discussion of the arguments for and against gun control, Justice Breyer arrives at his interest-balanced answer: Because handgun violence is a problem, because the law is limited to an urban area, and because there were somewhat similar restrictions in the founding period (a false proposition that we have already discussed), the interest-balancing inquiry results in the constitutionality of the handgun ban. QED. We know of no other enumerated constitutional right whose core protection has been subjected to a freestanding ‘interest-balancing’ approach. The very enumeration of the right takes out of the hands of government—even the Third Branch of Government—and the power to decide on a case-by-case basis whether the right is really worth insisting upon. A constitutional guarantee subject to future judges' assessments of its usefulness is no constitutional guarantee at all. Constitutional rights are enshrined with the scope they were understood to have when the people adopted them, whether or not future legislatures or (yes) even future judges think that scope too broad.”Curiously, Justice Breyer, in his dissenting opinion, makes Justice Scalia’s point for Scalia’s refusal to articulate a standard of review—even strict scrutiny. Justice Breyer says:“. . . adoption of a true strict-scrutiny standard for evaluating gun regulations would be impossible. That is because almost every gun-control regulation will seek to advance (as the one here does) a ‘primary concern of every government—a concern for the safety and indeed the lives of its citizens.’” United States v. Salerno, 481 U.S. 739, 755, 107 S. Ct. 2095, 95 L. Ed. 2d 697 (1987). The Court has deemed that interest, as well as "the Government's general interest in preventing crime," to be "compelling," see id., at 750, 754, 107 S. Ct. 2095, 95 L. Ed. 2d 697, and the Court has in a wide variety of constitutional contexts found such public-safety concerns sufficiently forceful to justify restrictions on individual liberties, see, e.g., Brandenburg v. Ohio, 395 U.S. 444, 447, 89 S. Ct. 1827, 23 L. Ed. 2d 430 (1969) (per curiam) (First Amendment  free speech rights); Sherbert v. Verner, 374 U.S. 398, 403, 83 S. Ct. 1790, 10 L. Ed. 2d 965 (1963) (First Amendment religious rights); Brigham City v. Stuart, 547 U.S. 398, 403-404, 126 S. Ct. 1943, 164 L. Ed. 2d 650 (2006) (Fourth Amendment protection of the home); New York v. Quarles, 467 U.S. 649, 655, 104 S. Ct. 2626, 81 L. Ed. 2d 550 (1984) (Fifth Amendment rights under Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966)); Salerno, supra, at 755, 107 S.  Ct. 2095, 95 L. Ed. 2d 697 (Eighth Amendment bail rights). Thus, any attempt in theory to apply strict scrutiny to gun regulations will in practice turn into an interest-balancing inquiry, with the interests protected by the Second Amendment on one side and the governmental public-safety concerns on the other, the only question being whether the regulation at issue impermissibly burdens the former in the course of advancing the latter. I would simply adopt such an interest-balancing inquiry explicitly.” And, in so doing, Justice Breyer made a glaring mistake. Justice Breyer was so convinced that a test of some sort must be used, he failed to realize that, in some instances, as in Heller, a governmental action that effectively neutralizes a fundamental right does not require application of some sort of Court devised test, as the governmental action is per se invalid. A governmental action must be struck down if it is directed to the core of a fundamental right. If a governmental action is directed to the core of a fundamental right, that means the governmental action is invalid on its face, i.e., facially, or per se, invalid. That is a salient, if tacit point of Heller. The point made is really nothing new. The U.S. Supreme Court has struck down facially unconstitutional laws, repeatedly, in the past, bypassing application of any test to ascertain constitutionality of a governmental action when the governmental action attacks the very core of the right protected by the Bill of Rights. For a general review of and good discussion of cases involving laws that the U.S. Supreme Court struck down on the ground of facial invalidity, see, e.g., two academic articles, written by an expert on the issue of facially unconstitutional laws, Richard H. Fallon, Jr., Professor of Law at Harvard university, "Fact and Fiction About Facial Challenges," 99 California Law Review 915 (August 2011); and, "As-Applied and Facial Challenges and Third Party Standing," Harvard Law Review (April 2000). There are a plethora of academic articles on this subject.Granted, Heller appears to be the first and only Second Amendment case, to date, where the U.S. Supreme Court has struck down a governmental action on the ground of facial invalidity—Justice Scalia finding application of any standard of review either to be redundant or possibly eliciting the wrong conclusion if applied--even if the words, "facial invalidity" do not appear expressly in Scalia's Heller opinion.Courts should seriously consider the reality and enormity of government transgression as government, at the federal, State, and local levels, callously enacts laws and regulations that attack the core of the Second Amendment, albeit doing so under the obvious guise of promoting public safety. Courts of competent jurisdiction should call out such patently unlawful government actions for what they are--scarcely covert attempts to destroy the Second Amendment to the U.S. Constitution. Laws and regulations, such as Maryland's Firearm Safety Act, should be found to be facially invalid as such laws and regulations are designed and implemented for no real purpose other than to prevent an American citizen from exercising his natural right to keep and bear arms under the Second Amendment. Courts should strike down such laws and regulations, unequivocally, peremptorily, totally, thereby sending a clear message to Congress, to the State Legislatures, and to local governments, that the Third Branch of Government, the Judiciary will not sit idly by as government seeks to legislate away the American citizen's fundamental right to keep and bear arms as codified under the Second Amendment. We continue with our analysis of Kolbe in Part Five of this series._________________________*Occasionally, Courts will use a Roman numeral as an informal designation for a case, if a plaintiff in an older case files a new action, raising a similar issue in the new case, against the same defendant. In fact, the principal plaintiff, in the seminal Heller case—a case subsequently and often referred to, as the U.S. District Court of Maryland refers to it, as Heller I—filed a new action against the District of Columbia, challenging the District of Columbia’s registration requirement on handguns and long guns and also challenging the District of Columbia’s ban on so-called “assault weapons” and so-called large capacity magazines—the same sort of challenge that Plaintiffs make to the Maryland Firearm Safety Act, in the Kolbe case.The citation of the recent Federal Circuit Heller case is, Heller vs. District of Columbia, 670 F.3d 1244 (Fed. Cir. 2011). This more recent case is often referred to, informally, as Heller II. We will be taking a close look at this case, as we continue with this important series of articles.Note: it isn’t coincidence that antigun Courts all use the same faulty reasoning when ruling that facially unconstitutional laws, infringing the Second Amendment, nonetheless pass constitutional muster. These Federal Circuit Courts of Appeal—notably, the Second, Fourth, Seventh, and Ninth—dealing with the same or similar fact patterns, are, we believe, clearly working in concert, having created an unholy alliance to uphold laws unconstitutionally infringing the core of the Second Amendment. These Courts, an important component of the  Judiciary—that should rise above the fray--above political and social dissension, exercising independent legal judgment—become, all too often, a lackey of political forces, doing nothing, really, to disguise that fact and doing nothing to disguise the fact, too, that they will ignore U.S. Supreme Court precedent when they wish to impose their own social and political will on society. What makes the actions of these Courts particularly reprehensible is that their actions always have the pious imprimatur of the law—falsely suggesting that their conduct is forever above the fray of politics when it really isn't as they are merely masking, in their judicial orders, what it is they are really doing--what they have done all along--making political and legislative pronouncements, becoming a servant of the Press and of the First Branch of Government--the Legislature--rather than operating as a co-equal Branch of Government as the Founders of our Republic intended for them to operate--namely as the grand interpreter of the law that the Constitution has given them the singular power and authority to oversee._________________________Copyright © 2017 Roger J Katz (Towne Criour), Stephen L. D’Andrilli (Publius) All Rights Reserved.  

KOLBE VS. HOGAN: WILL THE CORRECT STANDARD OF REVIEW IN A SECOND AMENDMENT CASE PLEASE STAND UP!

PART THREE

THE U.S. DISTRICT COURT OF MARYLAND EMPLOYED THE WRONG STANDARD OF REVIEW IN FINDING THAT MARYLAND’S DRACONIAN FIREARM SAFETY ACT IS LAWFUL.

The U.S. Supreme Court, in the case, District of Columbia vs. Heller, 554 U.S. 570, 128 S. Ct. 2783 (2008), wrestled with the legal test to be applied when determining if a law, impacting the Second Amendment, would pass Constitutional muster. The U.S. Supreme Court has, through time, in its great body of case law, developed three salient standards of review, or tests, one of the three which a court of competent jurisdiction must apply when testing the constitutionality of government action. But which test a court must apply to test the constitutionality of a particular government action depends on the nature and importance of the right protected, the extent to which a government--local, State, or federal--infringes that right, and the class of persons impacted by that governmental action.Apart from the high Court's three seminal holdings on the Second Amendment, in Heller, the Heller case is notable for explicating problems associated with all of those standard tests previously employed—and with problems associated with a new one that the dissenting Justice, Stephen Breyer, would like to have applied—when government enacts a law directly impinging on and infringing the very core of the Second Amendment. The late Justice, Antonin Scalia, writing for the majority in Heller, discussed the problems of each  of these standard tests, concluding that none of the traditional tests, including the balancing of interests test proposed by Justice Breyer, are adequate to protect the core of the Second Amendment, when a government deliberately, unabashedly attacks the very core of it.Justice Scalia began by pointing out that the weakest standard of judicial scrutiny, “rational basis,” should never be used to test the constitutionality of legislation, that, on its face, is directed against the exercise of a fundamental right, especially when legislation negatively impacts the Second Amendment. “Rational basis” is an unacceptable standard to be used because, if it is used, a governmental entity--be that a local, State, or Federal governmental entity—need only demonstrate that the governmental legislation is rationally related to a legitimate government purpose. Where the Second Amendment is impacted, this generally means that a governmental entity need only demonstrate that the governmental action is rationally related to a legitimate goal such as promoting public safety in order for that governmental entity to successfully defend against a challenge to the constitutionality of the governmental action.Rational basis, as a standard of review, to test the constitutionality of governmental action, where, as here, the Second Amendment is negatively impacted, is categorically inappropriate. Even the left-wing Justice, Stephen Breyer, agreed. As Justice Scalia stated, in Heller, “Justice Breyer correctly notes that this law [Maryland’s Firearm Safety Act] like almost all laws, would pass rational-basis scrutiny. [citation omitted]. But rational-basis scrutiny is a mode of analysis we have used when evaluating laws under constitutional commands that are themselves prohibitions on irrational laws. [citation omitted]. In those cases, ‘rational basis’ is not just the standard of scrutiny, but the very substance of the constitutional guarantee.” Obviously, the same test could not be used to evaluate the extent to which a legislature may regulate a specific, enumerated right, be it the freedom of speech, the guarantee against double jeopardy, the right to counsel, or the right to keep and bear arms [citation omitted].” District of Columbia vs. Heller, 554 U.S. 570, 628, fn.27.Justice Scalia points out clearly, categorically the inappropriateness of rational basis in testing the constitutionality of legislation negatively impacting the Second Amendment. For a Court using that lax standard could easily find that laws that unconstitutionally impinge on and infringe fundamental rights would, nonetheless, pass judicial scrutiny every time unless the governmental action is determined, by a court of competent jurisdiction, to be arbitrary and capricious—a notoriously difficult burden for a challenger to overcome, and something which a Court very rarely finds in governmental actions.On Second Amendment matters, where public safety is always asserted as the, or certainly a, salient reason for restrictive gun legislation, it is highly unlikely that a Court of competent jurisdiction would ever find any restrictive gun legislation—even an absolute gun restriction—to be arbitrary and capricious when public safety is asserted as at least one of the primary bases for the legislation. Of course, drafters of restrictive gun legislation, and the mainstream media that always trumpets such legislation, invariably assert “public safety” as the salient, predicate basis for enacting such legislation in the first place. Courts rarely, if ever, look beyond and behind the assertion to determine whether “public safety” is truly the basis for restrictive gun legislation and not simply a makeweight employed for the specific purpose of defeating any challenge made to it.Thus, a challenger—who, under rational basis, always bears the burden of proof, at the get-go, to demonstrate that a particular government action is unconstitutional—would have a very difficult time, demonstrating, to the satisfaction of a court of review, that such restrictive legislation is, under law, unconstitutional. This means, of course, that, under rational basis, any infringement of an American's fundamental right to keep and bear arms always passes constitutional muster. This isn’t an academic consideration. For New York Courts routinely use rational basis as a standard of review and have found, not unsurprisingly, the New York Safe Act—one of the most restrictive and notorious gun enactments in the Nation, that clearly, negatively impacts the core of the Second Amendment—to pass constitutional muster.But, would application of the highest standard of review, strict scrutiny, defeat restrictive gun legislation that hides behind the cloak of promoting public safety? Justice Scalia didn’t think so, notwithstanding the import of such heightened scrutiny.

WHAT DOES JUDICIAL REVIEW UNDER STRICT SCRUTINY MEAN?

What does review of legislation, under “strict scrutiny,” entail? Under strict scrutiny, a governmental body must show, one, that legislation impinging upon and infringing upon a constitutional right, must serve a “compelling governmental interest” and, two, that the law that ostensibly serves a compelling governmental interest, is, in fact, the least restrictive means government has available to it for achieving its stated goal.Such a test, properly used, would, one might reasonably think, preclude implementation of--or if implemented, would require a Court to strike down--devious  antigun legislation, designed primarily to curtail the legitimate right of gun owners to own and possess firearms by unconstitutionally, and, therefore, unlawfully, divesting them of that right. For, the mere and obviously false and ridiculous assertion by government that restrictive gun legislation is not designed to divest gun owners of their guns--as government doesn’t really wish to deny average law-abiding, rational Americans their right to own and possess firearms--but is designed merely to promote public safety--will not, by itself, satisfy strict scrutiny.The mere trivial claim of government--adequate to satisfy rational basis--is not enough to satisfy strict scrutiny. Such legislation would, it is reasoned, fail such severe judicial scrutiny, time and time again. That, of course, is what application of strict scrutiny is designed to do. But that is not always what happens--especially where legislation impinging on and infringing the right of the people to keep and bear arms exists. Justice Scalia knew this. He wasn’t fooled by the promise that strict scrutiny sought to engender. Justice Scalia saw the fallibility in the test of strict scrutiny—in any test or standard, really, that a Court may be called upon to employ when testing the constitutionality of restrictive gun legislation—even the test of strict scrutiny as applied to test the constitutionality of governmental enactments.Justice Scalia reasoned, in the Heller opinion, that, if the Courts use the most stringent standard, strict scrutiny, then government action, negatively impacting the right of the people to keep and bear arms—a fundamental right as codified under the Second Amendment—could still feasibly pass Constitutional muster.He said in Heller, “Under any of the standards of scrutiny that we have applied to enumerated constitutional rights, banning from the home ‘the most preferred firearm in the nation to keep and use for protection of one’s home and family,’” [citation omitted] would fail constitutional muster. District of Columbia vs. Heller, 554 U.S. 570, 628, fn.27.Academicians concur. One legal scholar writes, “Strict scrutiny must be worthy of its name; ‘strict’ should be truly ‘strict,’ not merely ‘significant.’ It should take more than a good college try to satisfy strict scrutiny. Otherwise aspects of liberty encapsulated in fundamental rights will lack the vigor the Supreme Law of the Land should command in a free society. That is why strict scrutiny is ‘the most demanding test known to constitutional law.’” “Making Second Amendment Law with First Amendment Rules: The Five-Tier Free Speech Framework and Public Forum Doctrine in Second Amendment Jurisprudence, Kenneth A. Klukowski, University of Notre Dame Law School, J.D., 93 Nebraska Law Review 429, 444 (2014). The author says, unabashedly, that the courts have “emasculated strict scrutiny.” Certainly, Justice Scalia was aware of this “emasculation” of the strict scrutiny test. It was for this reason that he was skeptical of asserting a standard of review for Second Amendment cases at all. Justice Scalia knew that many courts, federal and State, frown on the very existence of the Second Amendment. Given the chance, judges that despise the Second Amendment would find a restrictive gun law constitutional using any articulated standard of review. Justice Scalia also obviously knew that, to enhance the effectiveness of Heller, it was necessary to make clear to courts of inquiry that outright bans on entire categories of guns that the public has traditionally and commonly used for self-defense are per se unconstitutional. “There are situations in which even strict scrutiny proves insufficient to vindicate constitutional rights. Those are (1) categorical bans on firearms, and (2) firearm confiscations. . . . Per se rulings will . . . take off the table certain questions wherein courts are giving short shrift to the Second Amendment. The Second and Fourth Circuits have held that near-absolute bans on carrying firearms outside the home are constitutional, applying a faux intermediate scrutiny that more resembles rational-basis review.” “Making Second Amendment Law with First Amendment Rules: The Five-Tier Free Speech Framework and Public Forum Doctrine in Second Amendment Jurisprudence, 93 Nebraska Law Review at 446-447.

WHAT STANDARD OF REVIEW DID THE U.S. DISTRICT COURT OF MARYLAND USE IN DECIDING KOLBE?

But, what did the U.S. District Court of the District of Maryland, in Kolbe vs. O’Malley, 42 F. Supp. 3d 768; 2014 U.S. Dist. LEXIS 110976 (D. Md. 2014), do? The lower Court didn’t apply strict scrutiny, nor did it apply rational basis. The U.S. District Court applied another standard of review—intermediate scrutiny, and, having done, the Court, held, not surprisingly, that facially unconstitutional legislation nonetheless passes judicial inquiry into the constitutionality of that legislation--namely, that the Maryland Firearm Safety Act is lawful and consistent with the Second Amendment right of the people to keep and bear arms. Under “intermediate scrutiny,” a standard of review created by the U.S. Supreme Court, that ostensibly falls between the very lax “rational basis” standard and the seemingly strong “strict scrutiny” standard, a Court, using the intermediate scrutiny test, commences by asking whether legislation is rationally related to a legitimate government goal. That of course is the rational basis test; and, under that test, if the government action meets that liberal test, as it almost invariably does, the Court must need go no further in determining the constitutionality of the government action. But, rational basis is only the first step when a Court employs intermediate scrutiny. The Court then proceeds to the next step, and asks whether the legislation is substantially related to the governmental interest in achieving that goal. How did intermediate scrutiny come to pass? Originally, intermediate scrutiny was devised by the U.S. Supreme Court for use in gender discrimination cases. Intermediate scrutiny, though, has increasingly been used by Courts, in lieu of the heightened strict scrutiny, in cases where fundamental rights are at stake—most notably under the First and Second Amendments.Antigun Courts that are generally restrained from using rational basis—apart from the Courts of New York that have systematically gotten away with use of this altogether inapt standard of review—the standard of review of choice of these antigun Courts, tasked with ruling on the constitutionality of a government action that negatively impacts the Second Amendment, is intermediate scrutiny.But there is a problem with this standard of review. The problem with “intermediate scrutiny” is that it is difficult to get a handle on it. What does “substantially related” mean? It means different things to different Courts.Understand, if, as Justice Scalia pointed out in Heller, strict scrutiny is not an appropriate test to be used in testing the constitutionality of government action that infringes the core of the Second Amendment, intermediate scrutiny, as with the lax test, rational basis, is clearly not the appropriate test for a Court to use either. The U.S. District Court of Maryland used the test of intermediate scrutiny, anyway.Maryland’s Firearm Safety Act, operating as a total ban on an entire category of firearms that the law-abiding citizenry traditionally and commonly uses for self-defense—namely, those firearms the State arbitrarily defines as “copycat weapons” or “assault weapons” or “military style weapons” and ammunition magazines classified as “LCM” (Large Capacity Magazines)” commonly used for those weapons—passes constitutional muster on a standard of review the U.S. District Court for the District of Maryland decided to use—a standard of review to test the constitutionality of the Maryland Firearm Safety Act that the Heller majority discussed—along with rational basis and strict scrutiny—and summarily rejected.Why did the U.S. District Court of Maryland use a standard of review in clear contravention to Heller in testing the constitutionality of the Maryland Firearm Safety Act—that so blatantly infringes the right of the people to keep and bear arms? What was the U.S. District Court of Maryland thinking? Did the U.S. District Court of Maryland really believe that it could so easily snub the U.S. Supreme Court? What was the reasoning of the U.S. District Court? We deal with these questions in Part Four of this multipart series on Kolbe.__________________________________Copyright © 2017 Roger J Katz (Towne Criour), Stephen L. D’Andrilli (Publius) All Rights Reserved.

KOLBE VERSUS HOGAN: A CASE AT ODDS WITH HELLER

PART TWO

FACTS AND HISTORY OF THE CASE

The Plaintiffs in Kolbe, include two American citizens and residents of the State of Maryland, a gun club, a gun dealer, and several gun associations. The Plaintiffs filed an action in Maryland District Court, in 2013, against several Maryland State Officials: Martin J. O’Malley, in his official capacity as Governor of the State of Maryland, Douglas F. Gansler, in his official capacity as Attorney General of the State of Maryland, Marcus L. Brown, Col., in his official capacity as Secretary of the Department of State Police and Superintendent of the Maryland State Police, Maryland State Police, Defendants.The citation for the original case, filed in the U.S. District Court for the District of Maryland, with a slightly different case name is: Kolbe vs. O’Malley, 42 F. Supp. 3d 768; 2014 U.S. Dist. LEXIS 110976 (D. Md. 2014). On appeal to the U.S. Circuit Court of Appeals for the Fourth Circuit, the caption of the case was changed to reflect the new Governor, as party Defendant, Larry Hogan, who superseded Governor Martin O’Malley.In their Complaint, the Plaintiffs alleged that Maryland’s restrictive gun legislation, titled “The Firearm Safety Act of 2013,” is unconstitutional. Plaintiffs alleged specifically that the Maryland Firearm Safety Act infringes the Second Amendment to the U.S. Constitution, the Due Process Clause of the Fourteenth Amendment, and that the Act should be declared void for vagueness.The Firearm Safety Act is codified, in substantial part, in the Maryland Penal Code, Crim. Law (“CR”) §§ 4-301(d), 4-303(a)(2), and § 4-305(b). What does The Firearm Safety Act of 2013 say? The Act says that, “after October 1, 2013, no person may possess, sell, offer to sell, transfer, purchase, or receive ‘assault pistols,’ ‘assault long guns,’ and ‘copycat  weapons.’ These banned weapons are, collectively, defined as ‘assault weapons’ under the Act. In addition, the Act states that a person “may not manufacture, sell, offer for sale, purchase, receive, or transfer a detachable magazine that has a capacity of more than 10 rounds of ammunition for a firearm.” The focus of Plaintiffs’ Complaint was on challenging the constitutionality of Md. Criminal Law Code § 4-403, titled, Assault Weapons—Prohibited.  § 4-403(a) says: “Except as provided in subsection (b) of this section, a person may not transport an assault weapon into the State or possess, sell, offer to sell, transfer, purchase, or receive an assault weapon.”What constitutes an ‘assault weapon’ under Maryland law? An ‘assault weapon’ is no more than a legal fiction. Md. Criminal Law Code § 4-401, titled, simply, Assault Weapons, defines ‘assault weapon’ as an ‘assault long gun’ or ‘assault pistol’ or a ‘copycat weapon.’  Those three expressions are, in turn, defined as follows:“‘Assault long gun’ means any assault weapon listed under § 5-101(r)(2) of the Public Safety Article.‘Assault pistol’ means any of the following firearms or a copy regardless of the producer or manufacturer:AA Arms AP-9 semiautomatic pistol;Bushmaster semiautomatic pistol;Claridge HI-TEC semiautomatic pistol;D Max Industries semiautomatic pistol;Encom MK-IV, MP-9, or MP-45 semiautomatic pistol;Heckler and Koch semiautomatic SP-89 pistol;Holmes MP-83 semiautomatic pistol;Ingram MAC 10/11 semiautomatic pistol and variations including the Partisan Avenger and the SWD Cobray;Intratec TEC-9/DC-9 semiautomatic pistol in any centerfire variation;P.A.W.S. type semiautomatic pistol;Skorpion semiautomatic pistol;Spectre double action semiautomatic pistol (Sile, F.I.E., Mitchell);UZI semiautomatic pistol;Weaver Arms semiautomatic Nighthawk pistol; orWilkinson semiautomatic ‘Linda’ pistol. ‘Assault weapon’ means:an assault long gun;an assault pistol; ora copycat weapon. ‘Copycat weapon’ means:a semiautomatic centerfire rifle that can accept a detachable magazine and has any two of the following:a folding stock;a grenade launcher or flare launcher; ora flash suppressor;a semiautomatic centerfire rifle that has a fixed magazine with the capacity to accept more than 10 rounds;a semiautomatic centerfire rifle that has an overall length of less than 29 inches;a semiautomatic pistol with a fixed magazine that can accept more than 10 rounds;a semiautomatic shotgun that has a folding stock; ora shotgun with a revolving cylinder.‘Copycat weapon’ does not include an assault long gun or an assault pistol.”Penalties for violation of the law are harsh. A person who violates the Act “is guilty of a misdemeanor and on conviction is subject to imprisonment not exceeding 3 years or a fine not exceeding $5,000 or both.” Does the Act apply evenly to everyone? No. The law exempts retired law enforcement officers.

THE LOWER COURT’S DECISION

In ruling for the Defendants, upholding the constitutionality of a highly restrictive Firearm Safety Act, amounting essentially to a gun ban on an entire category of firearms, the lower Court said this: “the Firearm Safety Act of 2013, which represents the considered judgment of this State’s legislature and its governor, seeks to address a serious risk of harm to law enforcement officers and the public from the greater power to injure and kill presented by assault weapons and large capacity magazines. The Act substantially serves the government's interest in protecting public safety, and it does so without significantly burdening what the Supreme Court has now explained is the core Second Amendment right of ‘law-abiding, responsible citizens to use arms in defense of hearth and home.’”The ruling, far from clarifying the purported constitutionality of Maryland’s restrictive Act, begs the very question at issue: does the Act, banning citizen ownership of an entire category of firearms, violate the Second Amendment to the U.S. Constitution precisely because the Act precludes to law-abiding citizens the right to own an entire category of firearms they have owned for decades; and does the Act violate, as well, the Equal Protection Clause of the Fourteenth Amendment insofar as it extends to retired law enforcement officers a right to own a large category of firearms the Act denies to everyone else?

THE DECISION OF THE LOWER, U.S. DISTRICT OF MARYLAND, IS NOT CONSISTENT WITH THE HOLDING, REASONING, OR METHODOLOGY OF HELLER

Whenever a Second Amendment challenge is raised, courts of competent jurisdiction must consider the impact of and import of the U.S. Supreme Court’s decision in District of Columbia vs. Heller, 554 U.S. 570, 128 S. Ct. 2783 (2008), made applicable to the States in McDonald vs. City of Chicago, 561 U.S. 742, 130 S. Ct. 3020 (2010). To most people—those who have at least an inkling as to the import of Heller—the Heller case stands for the proposition that “The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home.” Upon acknowledging that holding as they must, Courts, such as the U.S. District Court for the District of Maryland, that profess an open dislike for the Heller case generally and for the Second Amendment particularly, proceed on their merry way to misread Heller. They do so to uphold draconian gun laws that are clearly inconsistent with Heller.Is Heller so difficult to understand? No! Even through a cursory reading of Heller, one can see that Justice Scalia, who wrote for the majority, provided specific, clearly articulated guidance for Courts to follow when a Second Amendment challenge to restrictive gun legislation comes before a Court.The U.S. Supreme Court in Heller, laid out, succinctly, the Court’s findings in its Syllabus. The Court Syllabus precedes discussion of the facts and issues of a case, and law applicable to a case. The Syllabus is not part of the main opinion but provides, for judges and attorneys, an abbreviated roadmap for getting a handle on a case.From the Syllabus in Heller, we see that the majority in Heller sets forth three distinct holdings. Apart from the first holding—namely that the right of the people to keep and bear arms is a right that accrues to the individual and, so, unconnected to that individual’s service in a militia—there are two other holdings that must be considered, along with the reasoning of the majority in Heller.The failure of the lower U.S. District Court and the failure of the higher Fourth Circuit Court of Appeals to adhere to the holdings of Heller and to apply the reasoning and methodology of the Heller Court, led to wrong decisions—decisions grounded on poor legal reasoning.Apart from holding that the right of the people to keep and bear arms is an individual right, the U.S. Supreme Court in Heller held that: “The District’s total ban on handgun possession in the home amounts to a prohibition on an entire class of ‘arms’ that Americans overwhelmingly choose for the lawful purpose of self-defense. Under any of the standards of scrutiny the Court has applied to enumerated constitutional rights, this prohibition—in the place where the importance of the lawful defense of self, family, and property is most acute—would fail constitutional muster.”It is precisely on the issue as to whether a complete ban on “an entire class of ‘ arms’ that Americans overwhelmingly choose for the lawful purpose of self-defense,”—weapons that Maryland and several other jurisdictions define as ‘assault weapons’— does or does not amount to an unconstitutional infringement of the American citizen’s right to keep and bear arms, that the U.S. District Court for the District of Maryland and the U.S. Court of Appeals for the Fourth Circuit should have focused their inquiry.Instead the lower U.S. District Court and the en banc Fourth Circuit meander into political discussions of whether this or that weapon that a citizen commonly owns constitutes a weapon of war and finding that this is so, deliver their rulings, namely, that the Maryland Firearm Safety Act, banning a very large category of weapons that the public commonly uses for self-defense, does not infringe the Second Amendment in an unconstitutionally impermissible way.Moreover, the lower District Court and the Fourth Circuit’s en banc majority admitted that the weapons the State of Maryland seeks to ban are not really weapons of war at all but are merely like military weapons—weapons the State refers to as “military-style weapons,” namely, “assault weapons”—weapons, nonetheless, similar enough to actual military weapons, according to these Court opinions, so as to be construed as military weapons and therefore not within the scope of the Second Amendment. But, assuming, for purpose of argument, that so-called “military-style weapons” or “copycat weapons” or “assault weapons” were true military weapons that the military does use—which, in fact, the military doesn’t—still, that doesn’t ipso facto mean such weapons do not deserve constitutional protection.After all, the Second Amendment, as written, and as intended by the founders of our free Republic, sought specifically to place military weapons in the hands of the citizenry, that citizens may protect themselves and the States from foreign aggression—threats outside the United States—and from a tyrannical federal government—threats to our individual liberty inside the United States. Thus, even if the Court in Heller didn’t rule directly on whether  American citizens may lawfully keep and bear true military arms for self-defense, this does not mean lower Courts may willy-nilly rule they can’t. The high Court, in Heller, left that issue open as the issue wasn't directly before the Court; but, in raising the issue at all, in dicta, the high Court was at least laying the foundation for considering the constitutionality of whether American citizens, in their individual capacity, unconnected with service in a militia, may keep and bear military arms. Yet, in all too many Court opinions today, antigun judges are quick to pass judgment on matters not before it--assuming, as if the matter were self-evident that the public is not permitted, under the Second Amendment, under any circumstances, to keep and bear military arms and, from that premise  which they take to be axiomatic--holding that the Second Amendment does not protect a right to keep and bear arms that, in a Court's judgment, are like military arms, even if they aren’t actually military arms and, notwithstanding that such weapons that are like military arms are those that are commonly used by American citizens for self-defense--a salient test for whether such weapons are protected under the Second Amendment at all.Again, keep in mind and burn into your memory: What the Heller Court did point out is that weapons that the public commonly uses for self-defense are weapons that do fall within the scope and protection of the Second Amendment.Now, such weapons that the Maryland Legislature, and several other State Legislatures, define as prohibited ‘assault weapons’ are those that the public commonly uses for self-defense. And, if so, such so-called “assault weapons” are a category of weapons, like handguns, that no Legislature may lawfully ban. To do so constitutes an impermissible infringement of an American citizen’s right to keep and bear arms under the Second Amendment, and constitutes an action by State government that is at loggerheads with the Heller decision.We continue with our analysis of Kolbe in Part Three of this series.______________________________________Copyright © 2017 Roger J Katz (Towne Criour), Stephen L. D’Andrilli (Publius) All Rights Reserved.

KOLBE VS. HOGAN: KILLING THE SECOND AMENDMENT

“Bubble Guns" In The Fourth Circuit Take Pot Shots At Heller In The Circuit's Poorly Reasoned Opinion

PART ONE

THE KOLBE CASE: INTRODUCTION

On February 21, 2017, antigun establishment judges of the U.S. Court of Appeals for the Fourth Circuit decided a case—one directly and negatively impacting the Second Amendment right of the people to keep and bear arms. The case, Kolbe vs. Hogan, 813 F.3d 160 (4th Cir. 2016, rev'd, Kolbe vs. Hogan ____ F.3d ____ (4th Cir. 2017) (en banc), 2017 U.S. App. LEXIS 2930, is the latest in a slew of badly decided and badly reasoned cases coming down the pike since the late Justice Antonin Scalia penned the majority opinion in the seminal Second Amendment U.S. Supreme Court case, District of Columbia vs. Heller, 554 U.S. 570, 128 S. Ct. 2783 (2008). What we are seeing are U.S. Circuit Court of Appeals openly defying the clear import and purport of Heller. We are seeing U.S. Circuit Courts of Appeal—the Second, Fourth, and Seventh U.S. Circuit Courts of Appeal—operating in open revolt to the U.S. Supreme Court on Second Amendment cases.The high Court, in Heller, made abundantly clear that the right of the people to keep and bear arms is an individual right—a right unconnected to a person’s connection with a militia. Two years later, question arose whether the Heller decision applies to the States. The U.S. Supreme Court, Justice Samuel Alito writing for the majority in the case McDonald vs. City of Chicago, 561 U.S. 742, 130 S. Ct. 3020 (2010), held that the individual right to keep and bear arms applies to the States no less so than to the federal government. The U.S. Court of Appeals for the Fourth Circuit obviously has clear disdain for the Second Amendment to the U.S. Constitution, and, concomitantly, disaffection for the Heller and McDonald cases that provide a firm foundation for the Second Amendment’s preservation and provide welcome relief to those Americans who wish to exercise their right under it.

WHERE TO BEGIN?

Where do we begin on our analysis of the atrocious decision of the Fourth Circuit in Kolbe. The import of this awful decision rests, first, upon the majority’s disregard for the precedential holdings of Heller and McDonald. The majority shreds the legal principle of stare decisis, which requires courts to uphold prior decisions lest the foundation of our system of case law fall apart. The import of this absurd decision rests, second, on the Court’s clear contempt for the explicit fundamental right of the people to keep and bear arms, codified in the Second Amendment to the U.S. Constitution. And, this atrocious decision rests, third, on the majority’s clear rebuke of U.S. Supreme Court Justice Scalia’s legacy.

WHY IS THE KOLBE CASE, IN PARTICULAR, CRITICAL TO THOSE WHO WISH TO SAFEGUARD THE RIGHT OF THE PEOPLE TO KEEP AND BEAR ARMS UNDER THE SECOND AMENDMENT?

Since 2008, when the Heller decision became the Law of the Land, there have been several cases wending their way up through the various Circuit Courts that have dealt directly or tangentially, and disparagingly, with the Second Amendment. What makes the Kolbe case so important to those Americans who hold dear the Second Amendment to the U.S. Constitution is that the decision openly defies Heller.One, the Kolbe decision amounts to a direct, frontal assault against the right of the people to keep and bear arms. Two, the decision is a disrespectful and unrestrained attack on the methodology that Scalia employed when the Justice wrote his opinion for the majority in Heller. Now, the Fourth Circuit, writing its damning opinion in Kolbe, won’t admit its denigration of the Second Amendment and, by extension, its disrespectful attitude toward Justice Scalia. After all, the decisions of the high Court are the Supreme Law of the Land, and lower courts, State and federal, are legally bound to respect and to apply rulings, holdings, and reasoning of the high Court.

HOW DO LOWER COURTS UNDERMINE RULINGS AND HOLDINGS OF U.S. SUPREME COURT CASES THEY DO NOT LIKE?

If a lower court doesn’t like a holding of the U.S. Supreme Court, it has weapons in its arsenal. Lower courts use these weapons against a U.S. Supreme Court holding if, one, the lower court disagrees with the decision of the high Court, and, two, if a lower court disagrees with the philosophy of law underlying the ruling of the high Court, and, three, if a lower court disagrees with the legal and logical methodology employed in support of the high Court’s ruling in a case.One technique a lower court uses to undercut a high Court ruling is to argue a distinction in fact patterns. We see this in Kolbe. Of course, a reputable* court would attempt to discern similarities in the facts of a case before it, before the court goes hither and yon, denying obvious similarity in fact patterns. A lower court should give maximum effect to a ruling of the U.S. Supreme Court but may feel less compelled to do so if it can, plausibly, demonstrate a distinction in fact patterns between the facts as presented in a case before the high Court and the facts as presented in a case being heard in a lower court.The U.S. Court of Appeals for the Fourth Circuit, in Kolbe opined that the facts of the Heller case are wholly unlike those in Kolbe. The Court is wrong.Why do we say that the Fourth Circuit is wrong? First, the critical facts in Kolbe are in several critical ways, identical to those in Heller. A couple of Plaintiffs in Kolbe, as with the Plaintiffs in Heller, are individuals who are under no disability. They are average law-abiding, rational, sensible, sane American citizens whose right to own and possess firearms is undeniable. Second, the D.C. Government in Heller, and the Maryland State Government in Kolbe, both enacted laws to ban outright an entire category of firearms that American citizens traditionally and commonly employ for self-defense. In our analysis of the Kolbe case, to follow, we will demonstrate how the U.S. Court of Appeals for the Fourth Circuit attempts to skirt clear U.S. Supreme Court precedent to ignore and undercut Heller and, in so doing, allows stand a restrictive Maryland firearms law that is unconstitutional and inconsistent with the Heller decision. The sad result is that average, law-abiding, sane American citizens who seek to own and possess firearms they had traditionally owned and possessed for decades, can no longer do so. Thus, notwithstanding that the gun ban enacted in Maryland applied originally only to residents of the State of Maryland and to those passing through the State, the Fourth Circuit decision directly impacts the right of American citizens in the five States that comprise the Fourth Circuit: North and South Carolina, Virginia and West Virginia, and Maryland. All individuals of these five States are now denied their right to keep and bear arms, guaranteed under the Second Amendment because they are denied their right to keep and bear an entire category of firearms they had traditionally owned—firearms that the American public commonly owns and possesses for self-defense.Second, lower courts that harbor a strong disdain for the ruling in Heller and who thereby harbor a disdain for the Second Amendment to the U.S. Constitution, misconstrue—whether deliberately and callously or, if not deliberately and callously, then certainly carelessly and recklessly—the reasoning of the high Court. The lower court substitutes for the high Court’s reasoning, its own flawed reasoning—reasoning, that lends support to a conclusion the lower court seeks, rather than to the conclusion the high Court requires that the lower court reach.In Kolbe, the Fourth Circuit applied a standard of review that the majority in Heller, and, in particular, Justice Scalia, who wrote the opinion, had rejected outright. We explain this in detail when we proceed with a comprehensive case analysis of Kolbe.Third, lower courts that harbor a strong dislike for the Second Amendment and who attempt to meander around the clear and cogent reasoning, rulings, and holdings of the high Court often, in our estimate, consider matters wholly outside the purview of the law, namely political matters. If so, this clouds judicial judgment, as application of the law to the facts of the case is colored by personal biases and feelings rather than by reasoned, seasoned, Judicial thought. In the process, judicial neutrality and integrity is lost as partiality enters into judicial decision-making. Thus, the rule of law is denied one or the other party to a lawsuit.As we proceed with our analysis, we make abundantly clear the extent to which the U.S. Court of Appeals for the Fourth Circuit considers matters, it appears to us, outside of legal constraints—matters that have no legitimate, legal, or, for that matter, logical connection to or bearing on how this Second Amendment case ought to be decided.The dreadful decision in Kolbe, also operates as a warning to the U.S. Senate Judiciary Committee. The Committee better get cracking on holding a confirmation hearing of the President’s nominee, Neil Gorsuch to the U.S. Supreme Court. It must do so because the Kolbe case must not stand unchallenged. The antigun forces have slowly chiseled away at Heller through other poorly reasoned and decided cases. But, Kolbe is most dire because this decision, more so than other Second Amendment cases coming down since Heller and McDonald, constitutes a direct assault on U.S. Supreme Court precedent, and, if allowed to stand, unchallenged, severely weakens the Second Amendment and will undoubtedly embolden other antigun federal Circuit Courts that wish to chisel away at Heller.Make no mistake, Plaintiffs in Kolbe vs. Hogan will take this case to the U.S. Supreme Court. They must, for the decision here is antithetical with the holdings set forth and reasoning evinced in the seminal Heller and McDonald cases.With Gorsuch on the high Court, the Justices will likely vote to hear this case. The Justices must hear this case. The case must be overturned, lest the legal precedents of Heller and McDonald be continually ignored by State Governments.What is Kolbe vs. Hogan really all about and why are the issues presented in it critical to the safeguarding of our Bill of Rights? We explain in Part 2 of this series.______________________________________*CLARIFICATION AND QUALIFICATION: The Fourth Circuit Courts, as with Courts of any other federal Circuit, are Courts of competent jurisdiction and, therefore, is competent to rule on the legal and factual issues that come before it. The authors of this article do not intend to assert expressly or impliedly that the Fourth Circuit Courts or that the Courts of any other Federal Circuit are not competent to rule on the cases that come before them. The term, 'reputable,' is not and was not used here to impugn the honor of Fourth Circuit Courts and is not and was not directed to impugn the honor of any other federal Court.  While we disagree vehemently with the decision and reasoning of the majority in the Kolbe case, we do admit that use of a term that would suggest that a Court might act dishonorably was wrong on our part, and for that we admit error and apologize for even suggesting the casting of aspersion on any Court. That said, we believe, as we will illustrate through a comprehensive analysis of the Kolbe decision and, eventually, in an analysis of similar decisions of various sister Courts--that political and ideological considerations pepper the reasoning and conclusions of many Courts as they wrestle with the core of the Second Amendment. The fact of the matter is, and we take this to be axiomatic, that every individual--whether judge, attorney, or layman--has a political philosophy, and it is clear to us that political philosophies are interjected into judicial opinions. We firmly believe, as we will show, in this multi article series, that legal precedent, which should be adhered to, often is not. Yet, if a Court wishes to overturn precedent, it should say so. Obviously, only the U.S. Supreme Court can legally overturn its own decisions. Lower Courts, State and Federal, must adhere to legal precedent set by the U.S. Supreme Court. We feel that the Fourth Circuit, in Kolbe, and certain decisions handed down by federal Courts in other Circuits, most prominently, in the Second, Third, Seventh, and Ninth Circuits, as well as the Fourth, have not abided by the holdings and reasoning of Heller and that this can only, and ultimately, be attributed to the insinuation of political philosophy into decision making--as much in judicial opinion, where we, unfortunately see it, as anywhere else. Since insinuation of political philosophy pervades Kolbe, and similar cases coming out of other Circuits, controversial though that statement may be, and as that is the underlying point of our criticism of Kolbe, we do not walk away from it, but embrace it.Our Second Amendment is not to be toyed with. The right of the people to keep and bear arms is the defining feature of our American heritage, for it is the primary safeguard against tyranny, and it informs our Government that the American people control their destiny. Our destiny is not controlled by those who have been given, for a time, extensive authority. For they govern in our name, for our benefit. They do not govern in their own name, for their own benefit. Somewhere along the line, in the years that have gone by, that idea has been lost. It should be found. The Second Amendment encourages those who govern us that ultimate authority rests with the American People, and the Second Amendment is a constant reminder to those who govern us where it is that true authority rests. It is not through the First Amendment, as the Press has, itself, lost its way. It is not through the Fourth Amendment unreasonable searches and seizures clause, as that has been blatantly ignored, even unconscionably refuted by Government, as illustrated through Government's actions. It is not through the due process and equal protection clauses of the Fifth and Fourteenth Amendments, which have grown more tenuous, through time. It is only through the continued existence of the Second Amendment. And even the fundamental right to keep and bear arms is slowly but inexorably being whittled away, in spite of Heller--a case that exists to remind Government that some members of the U.S. Supreme Court intend for the American People to retain ultimate authority over Government and responsibility for their own lives.______________________________________Copyright © 2017 Roger J Katz (Towne Criour), Stephen L. D’Andrilli (Publius) All Rights Reserved.