Judge Says Maryland Ugly-Gun Ban is OK

A Federal Judge in Maryland has declared that the state’s ban on AR and AK-pattern rifles and ammunition magazines capable of holding over 10 rounds is not unconstitutional because, she says, these rifles, among the most popular guns in the country, are not “commonly possessed for lawful purposes,” are especially dangerous, and that banning them does not present a significant burden to people wishing to use firearms for self-defense in their homes.

The judgment is in response to a lawsuit filed by a group of gun owners and members of the firearms industry. The plaintiffs presented three key grounds for Maryland’s new ban to be overturned:

● That it violated Second Amendment rights.
● That its exemptions for retired law enforcement officers violated the 14th Amendment’s Equal Protection clause.
● That the law is unconstitutionally vague because along with banning a list of specific guns, it also includes a ban on “copies” of the guns listed, but does not define what constitutes a “copy.”

Judge Catherine C. Blake, a Clinton appointee, engaged in an astounding level of circuitous reasoning and selective rationale to reach her conclusion that the gun ban is not unconstitutional. It is pretty clear that Judge Blake went into this case with a personal belief that guns are bad and dangerous, and that it was her job to find ways to protect Maryland’s draconian new law, which was passed in the wake of Newtown, Connecticut atrocity. Judge Blake accepted distorted statistics presented by the anti-rights advocates and their paid, results-driven “researchers” as absolute gospel, while dismissing evidence presented by the plaintiffs and their experts.

Judge Blake had some help reaching her distorted conclusion though. She relied heavily on a twisted construct previously employed by the Fourth Circuit Court of Appeals in the case of Wollard v. Gallagher. In that case, the original judge rightly concluded that Maryland’s practice of requiring that a person applying for a license to carry a firearm for self-defense outside the home demonstrate a specific need to do so – and rejecting almost all of those applications – was a violation of the clear intent of the Second Amendment. That decision was overturned by the Fourth Circuit in a controversial decision that turned inside-out the Supreme Court’s decision in Heller.

The Heller case was specifically about a man who wanted to be able to possess a functional handgun in his home for self-defense in the District of Columbia. The Court kept their ruling in that case very narrow, but made some comments about the nature and meaning of the Second Amendment in their opinion. Among those comments was a statement that the heart of the Second Amendment is the protection of a person’s right to defend “hearth and home.” They pointed out that handguns are by far the most popular choice of weapon for that purpose, and that Second Amendment protections would not extend to weapons that are not “typically possessed by law-abiding citizens for lawful purposes.”

The Fourth Circuit conflated the “hearth and home” comment, along with the references to self-defense and “lawful purposes,” to conclude that the only real protection of the Second Amendment involved the keeping of the most commonly owned firearms for the purpose of self-defense against common criminals in one’s home. Judge Blake used that reasoning to conclude that, since “assault rifles” and “large capacity magazines” are not frequently owned or used for that specific purpose, they are not protected under the Second Amendment.

Based solely on my reading of the judge’s summary of the arguments and her conclusion, I have to wonder what sort of case the attorneys for the plaintiffs actually put forward. It appears that they relied almost exclusively on the Heller and McDonald cases in their Second Amendment arguments, completely ignoring the swarm of other Supreme Court precedents that preceded Heller. Conspicuously absent in the plaintiffs’ arguments was any reference to US v. Miller, which clearly suggested that the types of weapons most protected by the Second Amendment are those most relevant to the maintenance of a militia. In Heller, the issue was self-defense in the home, and the Court ruled based on that issue. In Miller, the issue was whether possession of a particular type of weapon, in that case, a short-barreled shotgun, was protected under the Second Amendment. The Court concluded that they were unaware of short-barreled shotguns being employed in military service, so they concluded that possession of such a weapon was not protected.

Somehow with the advent of Heller and its conclusion that the right to keep and bear arms applies to individuals, independent of the individual’s active participation in a recognized militia unit, the militia aspects of the Second Amendment no longer apply. That is absolutely wrong. The objective of the Second Amendment was to ensure that the ultimate power always reside in the people. The ability to repel a criminal intruder or stop a carjacker or mugger is only a side benefit of the right that guarantees that the People have the ability to put the Constitution back in power if politicians and bureaucrats ever usurp the other mechanisms for righting the ship of state.

American hunters and shooters once shipped their guns to their disarmed cousins in England as a last resort against an expected Nazi invasion. Why would we put ourselves in a position of helplessness when there is no one out there to re-arm us in a time of critical need? Lawyers arguing for the Second Amendment in court need to go back to the basics of the Second Amendment every time.

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