The Federalist – by Margot Cleveland
Today the Supreme Court let stand the Fourth Circuit’s holding in Kolbe v. Hogan that semi-automatic rifles are not constitutionally protected “arms,” and in doing so declared the Second Amendment guarantees only a second-class right.
While Kolbe v. Hogan was but one of four circuit court decisions to have upheld state or local bans on semi-automatic rifles, this case differed greatly from its predecessors. In Kolbe, a case challenging Maryland’s “assault weapon” ban, the full Fourth Circuit held that the AR-15 and the semiautomatic AR47 (and other banned semi-automatic rifles) are “not constitutionally protected arms” because they are “weapons that are most useful in military service.” Conversely, the Second, Seventh, and DC circuits all held semi-automatic rifles are protected by the Second Amendment, yet bans were still justified by the governmental interest supposedly advanced.
A four-judge dissent in Kolbe eviscerated this reasoning, and rightly so. Kolbe’s analysis directly conflicts with the Supreme Court’s holding in Heller that the Second Amendment protects “firearms commonly used for a lawful purpose.” The prevalence of lawfully used AR-15s and semiautomatic AR47s clearly meets the Heller standard for garnering Second Amendment protection. The Fourth Circuit’s reasoning is also at odds with that of three other circuit courts, making Kolbe the ideal vehicle for the Supreme Court to clarify Second Amendment jurisprudence, as I argued in detail here.
Yet the Supreme Court denied review in Kolbe without comment, although not even two years ago, when the Supreme Court refused to hear an appeal from the Seventh Circuit’s assault-rifle-ban decision, Justice Clarence Thomas issued a dissent and publicly criticized his fellow justices for denying the petition for review: “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.”
This time around, though, Thomas uttered not a word. Nor did his fellow justices. Frankly, from a legal perspective, it makes no sense. Kolbe’s disregard for Supreme Court precedent far surpassed that seen in the Seventh Circuit’s Friedman decision. The Fourth Circuit’s ruling in Kolbe also established a further split in the circuits concerning the appropriate standard for judging laws under the Second Amendment. Normally, the Supreme Court would hear an appeal in such circumstances, if only to clarify the controlling standard.
But these aren’t normal times. With mass shootings—which while tragic, cumulatively still don’t amount to a patch on the handgun violence in Chicago in just one year—sane conversations about the constitutional right to bear arms are scarce. Now the Supreme Court has made clear it wants no part in that discussion.
Much like the dog that didn’t bark in the work of Holmes—Sherlock, not Oliver Wendell—the eardrum-shattering silence of the Supreme Court in denying review in Kolbe v. Hogan signaled the justices’ capitulation to the tyranny of pundits, politicians, and a small but vocal populace.
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Margot Cleveland is a senior contributor to The Federalist. Cleveland is a lawyer and a graduate of the Notre Dame Law School as well as a former full-time faculty member and current adjunct professor for the college of business at the University of Notre Dame. Email her: MargotCleveland@nd.edu.
“Now the Supreme Court has made clear it wants no part in that discussion.”
Good. Glad to see they’re finally seeing things my way and we can agree on something.
“In Kolbe, a case challenging Maryland’s “assault weapon” ban, the full Fourth Circuit held that the AR-15 and the semiautomatic AR47 (and other banned semi-automatic rifles) are “not constitutionally protected arms” because they are “weapons that are most useful in military service.”
“This country, with its institutions, belongs to the people who inhabit it. Whenever they shall grow weary of the existing government, they can exercise their constitutional right of amending it, or exercise their revolutionary right to overthrow it.”-Even scumbag lincoln stated the obvious reason for the Second, because the People then KNEW what it was for. The dummy “voters” today are relying on their masters to “joo-diciously” decide on whether they’re freed or not.
Removing an oppressive, occupying govt that has hijacked ours is ABSOLUTELY lawful as per the Second Article. Of COURSE they’re going to say any tool that could REMOTELY be used in leveling the playing field against their oath-breaking, boot licking, commie-joo order following kings men wearing OUR flag.
Supreme Court Guts Second Amendment By Refusing To Hear Semi-Auto Ban Case
OH…… YOU ARE DISAPPOINTED THAT THE ADMIRALTY COURT OF JEWS WOULDNT HEAR A CASE ABOUT YOUR RIGHTS????
FOOL!!!!!!
YOU WILL BE ON THAT DEPORTATION LIST!
IDIOT!!!!
This gives any state or municipality the ability to ban semi-automatic rifles.
I don’t really think it matters anymore. Americans have lost all respect for this “government”, and they can no longer conceal their tyranny behind the guise of acting in the public interest.
People see these things for what they are now, and because of that, this “government’s” days are numbered.
Doesn’t really matter anymore, 200 million or so semi auto’ s out there, tens of millions of boxes of ammo, GOOD GAWD MAN!
life is good!
I see scared crooks
Yup! They’re definitely worried about something. I hope they get ulcers, or worse.
I would like to point to an alternate definition of “Arms” that we don’t seem to consider. Perhaps this is why the Court has refused to hear this case.
“154. Arms, or coat of arms, signifies insignia, i. e., ensigns of honor, such as were formerly assumed by soldiers of fortune, and painted on their shields to distinguish them; or nearly the same as armorial bearings, (q. v.)”
source: https://thelawdictionary.org/arms/
Does the right to bear weapons stem from this right to our heritage? For more on this argument watch:
UnSpun 091 – Clint Richardson: “What is a Jew?”
http://www.youtube.com/watch?v=48YeqfViPN0
I’d like to see any military branch that uses an Ar-15. First they use m4 rifles. Second they are not armalite brand. Last I checked they use colt brand.
My ‘ar’ type m4 clone rifle is not an ar15. It looks like one and uses similar parts but has no armalite or colt parts and has no military issued parts on it. Nothing on mine is issued to the military. At all. The really only similarity up close is that it fires .223/5.56mm also. So does a mini 14.
Update! My dust cover spring might actually be from the same factory as military m4 rifles. All other springs and detente are after market.