Maryland illegally disarms the federal militia

By Scott Weiser

For decades anti-gun liberals have argued for strict gun control measures claiming that the 2nd Amendment only applied to soldiers in organized state militias, basing their claims on the language “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” Unwilling to admit their true agenda of repealing or ignoring the 2nd Amendment entirely in their zeal to ban guns, these activists grudgingly paid lip-service to the 2nd Amendment with their “state militia members only” mantra.

Now that the Supreme Court has ruled that the right to keep and bear arms is in fact an individual right that is not conditioned upon membership in a militia, liberal gun-banners are frantically searching for some other way to ban guns, and they have found a suitable anti-gun liberal bias in the persona of the United States 4th Circuit Court of Appeals in Richmond, Virginia. The court hears federal cases from Maryland, Virginia, West Virginia, North Carolina, and South Carolina, all strongly liberal Democrat states.

In a stunningly ignorant and arguably mendacious en-banc ruling the 4th Circuit just upheld Maryland’s ban of nearly all military-style semi-automatic rifles and large capacity magazines. The ruling is one of the most egregious and incomprehensible liberal misinterpretations of Supreme Court precedent on the 2nd Amendment ever seen.

In the wake of the horrific Newtown, Connecticut school shootings where 26 people were murdered because nobody in the school but the killer had a gun with which to put an end to the attack, the Maryland legislature passed the state “Firearms Safety Act of 2013” which bans the “transport [of] an assault weapon into the State” and makes it illegal to “possess, sell, offer to sell, transfer, purchase, or receive an assault weapon.”

The case made its way to the 4th Circuit, and the number of factual and plain legal errors made by the panel in its ruling call into question the qualifications of the judges on the bench to even hold law degrees much less sit as federal court judges.

Circuit Judge Robert B. King, a Clinton nominee, wrote the majority opinion that says “The Heller Court specified that ‘weapons that are most useful in military service — M-16 rifles and the like — may be banned’ without infringement upon the Second Amendment right. We are convinced that the banned assault weapons and large-capacity magazines are among those arms that are “like” “M-16 rifles” — “weapons that are most useful in military service” — which the Heller Court singled out as being beyond the Second Amendment’s reach…Put simply, we have no power to extend Second Amendment protection to the weapons of war that the Heller decision explicitly excluded from such coverage. Because the banned assault weapons and large-capacity magazines are clearly most useful in military service, we are compelled by Heller to recognize that those weapons and magazines are not constitutionally protected.

This statement is absolutely false in every respect and is nothing more than an egregious example of anti-gun liberal cherry-picking and creative editing.

In Heller what the Court actually said largely as an aside (known as dicta in legal parlance) not central to its actual ruling that the right to keep and bear arms is an individual, not a “militia only” right is “It may be objected that if weapons that are most useful in military service—M–16 rifles and the like—may be banned, then the Second Amendment right is completely detached from the prefatory clause. But as we have said, the conception of the militia at the time of the Second Amendment’s ratification was the body of all citizens capable of military service, who would bring the sorts of lawful weapons that they possessed at home to militia duty.

It may well be true today that a militia, to be as effective as militias in the 18th century, would require sophisticated arms that are highly unusual in society at large. Indeed, it may be true that no amount of small arms could be useful against modern-day bombers and tanks. But the fact that modern developments have limited the degree of fit between the prefatory clause and the protected right cannot change our interpretation of the right.

Undoubtedly some think that the Second Amendment is outmoded in a society where our standing army is the pride of our Nation, where well-trained police forces provide personal security, and where gun violence is a serious problem. That is perhaps debatable, but what is not debatable is that it is not the role of this Court to pronounce the Second Amendment extinct.

Nowhere does the Supreme Court say that military-grade weapons like the M-16 are outside of the ambit of the 2nd Amendment or that they may be banned. In fact, the Court says exactly the opposite by explicitly pointing out that historically militia members were expected (and in many cases commanded) to report for duty with their own “lawful” weapons, which at the time were as much military-grade arms as any actually issued to the U.S. Army by the Congress.

But pronouncing the militia clause of the 2nd Amendment extinct is exactly what the 4th Circuit just did, and in doing so it blatantly violated Article 1, Section 8 of the Constitution. By affirming Maryland’s self-declared power to disarm its militia members of “weapons that are most useful in military service the 4th Circuit judges have unconstitutionally trenched upon the power and ability of Congress to raise and equip armies, and the Supreme Court held this to be unlawful way back in 1886.

In Presser v. Illinois the Court ruled that “It is undoubtedly true that all citizens capable of bearing arms constitute the reserved military force or reserve militia of the United States as well as of the states, and…the states cannot…prohibit the people from keeping and bearing arms so as to deprive the United States of their rightful resource for maintaining the public security, and disable the people from performing their duty to the general government.

Federal law says today that the militia of the United States consists of “all able-bodied males at least 17 years of age and…under 45 years of age who are, or who have made a declaration of intention to become, citizens of the United States and of female citizens of the United States who are members of the National Guard” and that the unorganized militia “consists of the members of the militia who are not members of the National Guard or the Naval Militia.” This means Joe Average Citizen, not member of a state-organized militia.

It was this law that anti-gun zealots cited incorrectly as proof that the right to keep and bear arms was limited only to organized state militias. Simultaneously they argued out of the other corner of their mounts that an unorganized militia of untrained citizens is outmoded and unnecessary because our army is the pride of our Nation, and our well-trained police forces provide personal security, and where gun violence is a serious problem. Now they are trying to simply ignore the militia clause entirely in a gross and utterly unconstitutional display of mendacity and anti-gun bias.

But in Presser, Heller and its ruling in McDonald v. Chicago that made the 2nd Amendment binding on states and local governments through the 14th Amendment, the Supreme Court has effectively extinguished the power of a state or local government to ban entire classes of firearms, especially those firearms that are particularly well-suited to be arms of the individual soldier. This is true even when those arms are kept and borne by persons not technically subject to militia duty under the Militia Act.

Congress has the power to require that those not subject to militia duty give their arms to those who have been called to duty if necessary during times of national emergency under the power of eminent domain, subject to the payment of just compensation, as part of its authority to raise and equip armies. When a state disarms all of its citizens of militarily useful weapons it prevents Congress from exercising those powers.

Because the 4th Circuit went to such great lengths to explain exactly why the semi-automatic versions of military-grade rifles (and high capacity magazines that they use) are extremely effective arms for an individual militia member to bring with him or her when called to duty by Congress (and they are just that), the 4th Circuit has quite effectively shot its own case squarely in the foot. Perhaps we should thank them for this mistake as they are frog-marched off the bench.

While state and local governments may still impose reasonable regulations on the time, place and manner of the actual use of any weapons by their citizens so long as those regulations meet a strict scrutiny test for constitutionality and do not infringe on the fundamental enumerated right to keep and bear (acquire and possess) arms generally, they may no longer flatly ban the acquisition, transport or possession of entire classes of firearms, be they handguns or long guns, and especially not those that are of military utility, because to do so is to infringe on the ability and power of Congress to raise and equip armies.


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