Last week’s ruling by the judge of the U.S. District Court for the District of Maryland reminds us why it is important to elect U.S. senators who will reject an anti-gun president’s anti-gun nominees to the federal courts, and to elect presidents who will not nominate anti-gunners in the first place.
On Tuesday, August 12, Judge Catherine C. Blake, appointed to the court by President Bill Clinton, upheld Maryland’s “assault weapon” and “large” magazine ban in the case of Kolbe v. O’Malley.
Plaintiffs argued that the bans infringed their Second Amendment-protected right to keep and bear arms for defensive purposes. As examples, AR-15s and other general-purpose semi-automatic rifles are the most popular rifles for defensive purposes in the United States, and rifle and pistol magazines that hold more than 10 rounds are widely preferred for defensive purposes in guns kept at home and in those carried away from home.
Because the Supreme Court, in District of Columbia v. Heller (2008), indicated that, based upon its reading of U.S. v. Miller* (1939), it considered the Second Amendment to protect the individual right to keep and bear only arms “in common use” for lawful purposes, plaintiffs provided evidence that Americans own over eight million general purpose semi-automatic rifles, such as the AR-15. Obviously, that places such rifles among the most commonly owned center-fire rifles in the United States. Plaintiffs also provided evidence that Americans own tens of millions of magazines holding more than 10 rounds.
[* Note: In U.S. v. Miller, the Supreme Court indicated that the Second Amendment protects the right to arms that have a “reasonable relationship to the preservation or efficiency of a well regulated militia,” including those the use of which “could contribute to the common defense.” Clearly, general-purpose semi-automatic rifles meet that standard. The court also noted that the militia consists of people who, if called to service, would “appear bearing arms supplied by themselves and of the kind in common use at the time.”]
Plaintiffs also provided evidence that the firearms and magazines in question are commonly used for defensive purposes and marksmanship competitions centered on defensive rifle skills. They noted that such rifles and magazines dominate the Civilian Marksmanship Program’s National Trophy Matches, and that magazines holding more than 10 rounds are required for a variety of rifle and pistol sports.
Such other sports would include the NRA National Rifle Championships and competitions of the U.S. Practical Shooting Association, Three-Gun Nation, International Defensive Pistol Association, and the U.S. Carbine Association. Furthermore, the vast majority of intermediate and advanced rifle training in the United States is centered on defensive rifle skills.
In Heller, the Supreme Court further suggested that the Second Amendment protects the right to keep and bear only such arms that are not “dangerous and unusual.” Of course, “dangerous and unusual” weapon statutes, which date back to England before the founding of the United States, have historically prohibited dangerous and unusual conduct with a weapon, rather than the weapon itself. For example, in one ancient case, it was deemed “dangerous and unusual” to ride a horse through a courthouse at night while drunk, while riding a horse under more conventional circumstances was perfectly lawful.
Judge Blake, like other gun control supporters, instead interpreted “dangerous” and “unusual” according to their dictionary definitions. However, even this error should have presented no problem. Guns owned by millions of Americans and magazines owned by tens of millions of Americans are, by definition, not “unusual.”
Plaintiffs also provided evidence that the banned guns are not “dangerous” as Maryland’s gun ban supporters claimed. Two preeminent experts in the field of ballistics, Dr. Gary Roberts and Buford Boone, who served for 15 years as Supervisory Special Agent of the FBI’s Ballistics Research Facility in Quantico, Virginia, provided testimony that ammunition used in rifles affected by the ban is not any more dangerous than many other calibers of ammunition, to private citizens or law enforcement officers wearing bullet resistant vests, and is less likely to over-penetrate than commonplace handgun bullets weighing two to three times as much.
Judge Blake instead accepted the testimony of a layman in the field of ballistics, that bullets fired from banned rifles are particularly able to penetrate soft body armor and bullet-resistant glass used by law enforcement officers, and that of the anti-gun activist group, Violence Policy Center, exaggerating the use of “assault weapons” against law enforcement officers.
Judge Blake at least recognized that she was bound to follow the Supreme Court’s decision in Heller, but she interpreted that decision incorrectly. She wrote, “Maryland law enforcement officials are unaware of any Marylander using an assault weapon, or needing to fire more than ten rounds, to protect himself,” and she noted that anti-gun public health researcher Daniel Webster, of the Bloomberg School of Public Health at Johns Hopkins University, provided testimony that he was unaware of any study concluding that the banned firearms and magazines are necessary for defensive purposes.
Judge Blake’s error was threefold. First, she failed to take into account that “assault weapons” have for many years been “regulated firearms” in Maryland, suppressing their purchase and ownership. Second, she drastically underestimated the frequency of defensive gun use by counting only those instances in which defenders used firearms to kill criminals, a common deception employed by gun control supporters. Had Judge Blake cared, the landmark Kleck-Gertz study found that defenders killed or wounded criminals in only eight percent of defensive gun uses.
Second, in Heller, the Supreme Court did not interpret the constitution or evaluate the usefulness of guns for defensive purposes based upon the opinions of merely a few law enforcement officials or a researcher who makes his living promoting gun control. Nor did the court dispute that the people have a right to defend themselves on the bogus grounds that most never are forced to do so. Instead, the court struck down the District of Columbia’s handgun ban on the basis of the fact that the millions of Americans have decided that handguns (including those using magazines that hold more than 10 rounds) are the best firearms to have in case they need to defend themselves within their homes, defense at home being the issue raised in the Heller case.
Striking down the District’s handgun ban, the court said “It is no answer to say, as petitioners do, that it is permissible to ban the possession of handguns so long as the possession of other firearms is allowed. It is enough to note, as we have observed, that the American people have considered the handgun to be the quintessential self-defense weapon. . . . Whatever the reason, handguns are the most popular weapon chosen by Americans for self-defense in the home, and a complete prohibition of their use is invalid. . . .”
Judge Blake further erred relative to Heller, claiming that the ruling states that the Second Amendment protects the right to use arms only “in defense of hearth and home.” To the contrary, Heller said that historically “the inherent right of self-defense has been central to the Second Amendment right,” that the amendment protects “the individual right to possess and carry weapons in case of confrontation,” and that “the Second Amendment extends, prima facie, to all instruments that constitute bearable arms” that are of a type “in common use” for lawful purposes and not “dangerous and unusual.” Heller merely noted that it is “in the home, where the need for defense of self, family, and property is most acute.”
Reminiscent of the Brady Campaign’s contradictory claims that “assault weapons” are designed for military purposes, combat and the battlefield, but have no defensive utility, Judge Blake accepted testimony from the Violence Policy Center, Brady Campaign and other ban supporters that AR-15s are derived from the M16, the defensive orientation of which is indisputable, but concluded that the banned guns and magazines are not used for defensive purposes.
Judge Blake also disregarded a survey of 5,070 owners of general-purpose semi-automatic rifles by the National Shooting Sports Foundation, which found that defensive purposes was the second most common reason for owning such a rifle.
Essentially, Judge Blake failed to take into account any evidence that would undermine the bans. The direction she intended to head in her ruling was evident in its first sentence: “On May 16, 2013, in the wake of a number of mass shootings. . . .”
She concluded, saying “Upon review of all the parties’ evidence, the court seriously doubts that the banned assault long guns are commonly possessed for lawful purposes, particularly self-defense in the home, which is at the core of the Second Amendment right, and is inclined to find the weapons fall outside Second Amendment protection as dangerous and unusual. First, the court is not persuaded that assault weapons are commonly possessed based on the absolute number of those weapons owned by the public. Even accepting that there are 8.2 million assault weapons in the civilian gun stock, as the plaintiffs claim, assault weapons represent no more than 3% of the current civilian gun stock, and ownership of those weapons is highly concentrated in less than 1% of the U.S. population.”
Assuming Judge Blake’s ludicrous ruling is appealed, it will be to the United States Court of Appeals for the Fourth Circuit. Stay tuned and vote for a solidly pro-Second Amendment Senate in November.