What happens when courts create faux rights, such as the “right” for foreign nationals to immigrate, the “right” for states to demand more immigrants from the federal government, the “right” for illegal aliens to obtain driver’s licenses, or the “right” to 15 days of early voting?
As is always the case, after conservatives secured a 2-1 victory at the Fourth Circuit last year against Maryland’s “assault weapons” ban, the full en banc panel upheld the law. In a 10-4 ruling – one which was full of vengeful rhetoric over Sandy Hook and ignorance of the distinction between a machine gun and a ‘scary looking’ semi-auto — the court ruled that Maryland could ban 45 commonly held weapons as well as magazines that hold more than 10 rounds. “We have no power to extend Second Amendment protection to the weapons of war that the Heller decision explicitly excluded from such coverage,” wrote a brazen Judge Robert B. King. Every Democrat appointee except for Judge William Traxler (who wrote the dissent) and one GOP appointee joined the majority opinion.
Following the Sandy Hook shooting, states like Maryland, New York and Connecticut banned a multitude of semi-automatic rifles containing cosmetic features that make them look scary. Some states also required forced registration of those firearms already owned by private citizens. Additionally, they banned magazines that hold more than 10 rounds. Yet, despite almost a decade since the Heller decision, the lower courts have been allowed to chip away at this foundational right. Thus far, the Second, Fourth, Seventh, and Ninth Circuits have all ruled that almost any common gun or magazine in use can be banned by a state if the pistol grips and picatinny rails on the rifles look scary. Additionally, the Second, Third, Fourth, Ninth, and Tenth Circuit Courts have each ruled there is no right to self-defense outside the home — in contravention of the plain language of the Heller decision.
As I’ve written before, the notion that any common weapon can be banned violates the inalienable right to self-defense, which predated the Second Amendment. It is a natural right. Yet, given that we live in a world where rights come from the Supreme Court, we should at least ensure that lower courts properly read the text of the Heller decision. Here is what Scalia wrote in the majority opinion:
Thus, contrary to the Fourth Circuit’s opinion, this case has already been addressed by Heller. There is no government “interest balancing” for perceived benefits of public safety that can justify the infringement upon the right to self-defense for any commonly held weapon used for lawful purposes.
Protecting gun rights from heavy-handed laws in blue states is practically the only benefit left for conservatives to keep the practice of judicial review.
Judge William Traxler, in a rare display of intellectual honesty for a Democrat appointee, laid out the consequences of this case in plain English:
Indeed, in the case of lower courts upholding sweeping gun bans, the silence of more than three justices willing to grant cert to petitioners (it takes four) is deafening. As Justice Thomas has noted in his dissent on the denial of cert on the two previous assault weapons bans, the other justices (presumably Roberts and Kennedy included) are clearly allowing the Second Amendment to become a second-class right. And Roberts was allowing this to happen even when Scalia was on the court. Thus, don’t expect this to change after Gorsuch takes his seat on the high court.
What this decision demonstrates, once again, is that not only does stare decisis (precedent) only hold true for liberal Supreme Court rulings, but it fails to bind even the lower courts to opinions it doesn’t like. This is the same rationale the Ninth Circuit used to trash 200 years of settled case law when they created a right to immigrate.
Protecting gun rights from heavy-handed laws in blue states is practically the only benefit left for conservatives to keep the practice of judicial review. Yet, the past five years of gun cases has demonstrated that the courts will never serve as a legitimate venue for us to protect real rights. As such, why empower them to create phony rights for protected classes and dangerous rights for foreign nationals?