Fourth Circuit misinterprets Supreme Court 2nd Amendment precedent
In Kolbe v. Hogan, the Fourth Circuit, sitting en banc, became the first Federal Circuit Court to hold that so-called “assault weapons” and “large-capacity magazines” are not protected by the Second Amendment. But the court’s decision resulted from a misinterpretation of Supreme Court precedent.
In U.S. v. Miller (1939), the Supreme Court held that short-barreled shotguns were not protected by the Second Amendment, the reason being that such weapons were “not part of the ordinary military equipment” and had no “reasonable relationship to the preservation or efficiency of a well regulated militia.” The Court added that the weapons that were related to militia service were those “in common use at the time,” since “ordinarily when called for service these men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time.”
In D.C. v. Heller (2008), the Supreme Court specifically addressed “what types of weapons Miller permits.” Although Miller noted that short-barreled shotguns were “not part of the ordinary military equipment,” the Heller Court determined that the right could not be limited to military arms. Instead, the Heller Court focused on the language about militiamen being “expected to appear bearing arms supplied by themselves and of the kind in common use at the time.” The Court reasoned that protecting “arms in common use at the time”—the type of arms militiamen were expected to provide themselves for militia service—“is precisely the way in which the Second Amendment's operative clause furthers the purpose announced in its preface.”
After reiterating that “Miller said … that the sorts of weapons protected were those ‘in common use at the time,’” the Heller Court returned to the issue of whether the Second Amendment’s operative clause (which reads, “the right of the people to keep and bear Arms, shall not be infringed”) furthers its prefatory clause (which reads, “A well regulated Militia, being necessary to the security of a free State”), when the operative clause is interpreted as protecting the right of individuals to possess “arms in common use at the time.”
The Court recognized that under the “common use” test, the arms that are most useful for military service may not always be protected by the right—so the fit between the prefatory clause and the right protected by the operative clause is not always going to be perfect. But that fact, the Court concluded, does not change the fact “that the sorts of weapons protected [a]re those in common use at the time:”
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.
The fact that the protected right (to possess arms “in common use at the time”) may not always fit perfectly with the prefatory clause (ensuring the effectiveness of the militia) does not change what the right is (to possess arms “in common use at the time”). Put differently, although the right was codified to ensure the effectiveness of the militia, even the “weapons that are most useful in military service” are only protected if they are “in common use at the time.” The language is unambiguous, and it is perfectly consistent with Heller’s holding that the Second Amendment protects handguns based on their popularity.
But the Fourth Circuit interpreted the excerpted paragraph as making “clear” that “the Second Amendment does not shield” “weapons that are most useful in military service.” So when it came time to determine whether “assault weapons” (of which there are over 8 million throughout the country) and “large-capacity magazines” (of which there are over 75 million throughout the country) are “in common use,” and therefore protected by the Second Amendment, the court deemed the question irrelevant. “Thankfully” the court inexplicably declared, “we need not answer all those difficult questions today, because Heller also presents us with a dispositive and relatively easy inquiry: Are the banned assault weapons and large-capacity magazines ‘like’ ‘M-16 rifles,’ i.e., ‘weapons that are most useful in military service,’ and thus outside the ambit of the Second Amendment?” Since the court determined they are, it upheld the bans.
Contrary to the Fourth Circuit’s unique interpretation, Heller never said “weapons that are most useful in military service” are not constitutionally protected. Heller simply provided a hypothetical to make the point that even if “weapons that are most useful in military service” are “highly unusual in society at large” and therefore not “in common use at the time,” it does not change the fact that the right only protects those arms that are “in common use at the time.”
Thus, the only test Heller provided for the Fourth Circuit was the “common use” test. Instead, the Fourth Circuit took one sentence from Heller’s 64-page opinion out of context, and applied it in a way that directly contradicted the rest of the Heller decision.
If contradicting Heller did not give the Fourth Circuit pause, perhaps contradicting Miller should have. In contrast to the Fourth Circuit’s test, which allows arms “that are most useful in military service” to be banned, the Supreme Court in Miller allowed short-barreled shotguns to be banned because they did not constitute “part of the ordinary military equipment” or have “some reasonable relationship to the preservation or efficiency of a well regulated militia.”
The Supreme Court has been reluctant to review Second Amendment decisions in recent years, but of the many hundreds of Second Amendment cases decided since Heller, few have warranted the Court’s consideration as much as the Kolbe decision does.
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