It’s Important to Understand Just How Hostile The Courts Are

I see it all the time: people who believe the Second Amendment is an obvious, self-enforcing unmovable rock of American law. If you spend any time talking to gun owners, you will run into this. The basic idea that judges could simply interpret it out of the constitution is such an anathema to many people like this, they will often refuse to accept that it could happen.

In that vein, the 4th Circuit sitting en banc, in a 10-4 ruling deciding the fate of Maryland “assault weapons ban” have held that weapons that are “most useful in military service” are simply categorically unprotected. Because almost all modern firearms have a military pedigree, this interpretation would allow nearly any firearm to be banned.

The ruling was 10-4. Just let that sink in. That’s not even close. We have had to convince four additional judges to prevail here. A lot of people have done analysis of the ruling already, like Charles C.W. Cooke and John Richardson. What I want to do is look at a breakdown of the judges:


  • Judge King wrote the majority opinion, and was appointed by President Clinton.
  • Chief Judge Roger Gregory joined the opinion. He was recess appointed by Bill Clinton, but George W. Bush put him on the bench permanently.
  • Judge Harvey Wilkinson wrote a concurring opinion. He will never sit on the Supreme Court so long as there’s any life left in the National Rifle Association. He is a “conservative” judge, but one who hates gun rights. He was appointed by President Reagan.
  • Judge Motz was appointed by President Clinton.
  • Barbara Milano Keenan was appointed by President Obama.
  • James A. Wynn was appointed by President Obama. He joined Judge Wilkinson’s opinion.
  • Henry Franklin Floyd was appointed by President Obama.
  • Stephanie Thacker was appointed by President Obama
  • Pamela Harris was appointed by President Obama

Joined in Part

  • Albert Diaz was appointed by President Obama. He only joined the 2nd Amendment and 14th Amendment portions of the decision.


  • William Byrd Traxler was appointed by President Clinton, and wrote the dissenting opinion.
  • Paul Niemeyer was appointed by President George H.W. Bush
  • Dennis Shedd was appointed by President George W. Bush
  • G. Steven Agee was appointed by President George W. Bush

Boy I sure am glad we taught the GOPe and those assholes McCain and Romney a lesson they won’t ever forget! Even if George W Bush and Reagan hadn’t flubbed a few nominations, we still would have lost because the 4th circuit Court of Appeals is absolutely stacked to the gills with Obama and Clinton nominees. You know the old adage that only the Republicans get court picks wrong?

Today the majority holds that the Government can take semiautomatic rifles away from law-abiding American citizens. In South Carolina, North Carolina, Virginia, West Virginia and Maryland, the Government can now tell you that you cannot hunt with these rifles. The Government can tell you that you cannot shoot at targets with them. And, most importantly, the Government can tell you that you cannot use them to defend yourself and your family in your home. In concluding that the Second Amendment does not even apply, the majority has gone to greater lengths than any other court to eviscerate the constitutionally guaranteed right to keep and bear arms.

In addition, the majority holds that even if it is wrong when it says that the Second Amendment does not cover these commonplace rifles, Maryland can still lawfully forbid their purchase, even for self defense in one’s home-the core Second Amendment right. My friends do not believe this ruling impairs the rights citizens have under the Constitution to any significant degree. In my view, the burden imposed by the Maryland law is considerable and requires the application of strict scrutiny, as is customary when core values guaranteed by the Constitution are substantially affected. I recognize that after such a judicial review, the result could be that the Maryland law is constitutional. I make no predictions on that issue. I simply say that we are obligated by Supreme Court precedent and our own to treat incursions into our Second Amendment rights the same as we would restrictions on any other right guaranteed us by our Constitution.

Therefore I respectfully dissent.

Written by a Clinton Appointee. Sometimes they don’t get what they want out of a judge either.

42 thoughts on “It’s Important to Understand Just How Hostile The Courts Are”

  1. Time to start stoking the fires of an Article V. Convention of the States to bring in an Amendment to the Constitution that reads: “The American Citizen has an Individual Right to the ownership of ALL Small Arms/Firearms and ammunition. Any Government at any level is now hereby prohibited from implementing any defacto or dejure ban upon any Small Arm(s)/Firearm(s) through economic levies, taxation, and/or by constructing, vague and obscure political terms that may be changed of and within their definitions by the act of legislation and/or bureaucratic fiat (that’s what the term “Assault Weapon” is). Our side also needs to be more vocal and articulate in attacking, tarring, and, feathering the term “Assault Weapon”. Our side is now, in more part than not, responsible for that leftwing, propaganda term, “Assault Weapon” now being a legal term against firearms that is crafted for the purpose of, slowly but surely overtime, casting one category of firearms after under the term of “Assault Weapon” in order to create a defacto and eventually dejure abolition of civilian firearm ownership.

    1. You might include machine guns specifically while you’re at it, and also a prohibition on registration/monitoring of private citizens.

  2. Also, rulings like this now open the floodgates for the gun-grabbers in the Democrat Party to Legislatively ban grandpa’s hunting rifle by calling it a “Sniper’s Rifle” or his pump-action duck shotgun a “Street Sweeper”.

  3. We the People need a legal means to remove bad judges from the federal courts. This judge for life has to end.

    1. Careful what you wish for — Do you really think that say, Scalia or Thomas would have lasted as long on the bench, if that were an option?

      1. Um, guys? Judges *have* been impeached before.

        Also, only SCOTUS judges are for life, I believe.

  4. Wilkinson in particular is a contemptible shitbag. His concurrence is a bunch of pieties to judicial restraint and the democratic process, which, at bottom, is an argument against having written constitutions and judicial review at all — and if Wilkinson really believes that, he ought to do the honorable thing and resign his judgeship, and then spend the rest of his life trying to convince everybody that Marbury v. Madison was incorrectly decided.

    If he’s unwilling to do that, then he has an obligation to follow the law. As Heller points out, judge, the enumeration of rights in the Constitution necessarily takes certain policy choices off the table. It’s fundamentally anti-majoritarian, and so getting your dress over your head about democracy is either embarrassingly stupid or nakedly ideological.

    This is the kind of shit that makes me want to don my Wookiee-suit and join the threepers.

    1. It’s fundamentally anti-majoritarian

      Absolutely agreed. The whole point of rights is to remove them from democratic consideration.

    2. I apologize for this late reply. I just read the Fourth’s opinion, and saw that HELLER WAS THEIR JUSTIFICATION for banning “assault” weapons. I quote the Fourth’s majority:
      “We are convinced that the banned assault weapons and large-capacity magazines are among those arms that are ‘like’ M-16 rifles — ‘weapons that are most useful in military service’ — WHICH THE HELLER COURT SINGLED OUT AS BEING BEYOND THE SWCOND AMENDMENT’S REACH. Put simply, we have no power to extend Second Amendment protection to the weapons of war that the HELLER DECISION EXPLICITLY EXCLUDED FROM SUCH COVERAGE”. [Emphases mine]
      Gentlemen, when the Second Amendment clearly specifies militia arms as the type of arms protected therein, and Heller (according to the Fourth Circuit) specifies those exact same military arms as “beyond the reach” of Second Amendment protection,” then I am forced to conclude we have elitist prima donnas masquerading as constitutionalists on the Supreme Court – and yes, I am afraid that included even Scalia in Heller.
      I have always stated that Heller was not the victory we thought it to be. “Reasonable regulations” is always legal-speak for “you have no rights at all!

      Respectfully, Arnie

      1. Except Heller said nothing of the sort. The Fourth played word games to get their desired result. The Fourth is wrong.

        1. Indeed, the Fourth is wrong, Patrick. Certainly they ignored the Second’s reference to the militia, which clearly extends its protections to military arms like the M-16. And perhaps they did twist the intent of Heller’s words, but I blame Heller’s authors for using rhetoric that makes such twisting easy:

          ‘The Second Amendment protects an individual right to possess a firearm unconnected with service in a militiia.’

          – Why didn’t Scalia write “The Second Amemdment INCLUDES protection of an individual right…unconnected with service in a militia”? As written, it allows nefarious judges to claim protection only for “guns that are unconnected with service in a militia.” And so they now have. But the following is even worse:

          ‘Miller’s holding that the sorts of weapons protected are those “in common use at the time” finds support in the historical tradition of prohibiting the carrying of dangerous and unusual weapons.’

          – “Common use” in Miller referred to weapons commonly used IN THE MILITARY by soldiers of that day, clearly protecting military arms employed by the average soldier – then, a Garand; today, an M-16, the very rifle whose civilian variants the Fourth banned using (twisting?) the above words of Heller, because assault rifles are supposedly “dangerous and unusual” in the hands of the common CIVILIAN.
          Why didn’t Scalia make plain that Miller referred to weapons common to a militia, so as not to insinuate common only to service “unconnected with the militia,” i.e., hunting, sport shooting, and personal defense, for none of which an “assault rifle” would be considered common.
          Again, I agree with you that the Fourth Circuit judged wrongly, but IMHO, Scalia made it easy for them. He certainly could have made it a lot harder.


  5. I know that Heller overturned the part from US v Miller (1939) that held the only arms protected by the 2A were those that had some relationship to militia service, which was long used as a means of narrowing the scope of the amendment’s protection to the point that it was non-existent. However, this decision turns Miller on its head. I really cannot see how this can stand up before SCOTUS. Not only does it tear the head off of stare decisis and defecate down the neck, the 4th Circuit has also dropped trouser and mooned the Supremes in a manner that should anger even Roberts and Kennedy, heck maybe even Kagan! Am so glad that Neil Gorsuch is coming to the court.

    1. Methinks this will quickly go the way of the Supreme Court ruling on the Massachusetts stun-gun ban!

      1. We don’t have the votes on SCt to overturn this even once Gorsuch is confirmed.

        1. SPQR is correct. Even before Scalia died, the Supremes refused to take ANY case about evil black rifles, carrying pistols, or even the fed ban on 18-20 year old adults buying pistols.

    2. How can requiring them to be related to militia service be a bad thing?
      Anything can be used in time of war, and tying it to militia use means military use, anything used at anytime by any military should be untouchable. Machine guns, grenades and rockets and bazookas included!
      Almost all guns came from military lineage, other than a few rare examples all have or are used in some form by the military.

  6. Pingback: SayUncle » Indeed
  7. A truly duplicitous opinion on-par with Cases v US which inserted the “militia right” perversion into the federal courts in 1942 — a perversion that 2nd Amendment jurisprudence suffered under for 66 years.

    Just like Cases, this opinion has as its primary intent to completely reverse SCOTUS precedent.

    It seeks to erase Miller’s protection criteria, which asked if the “weapon is any part of the ordinary military equipment” and instead, hold up Miller’s reasoning to find 2nd Amendment protection as reasoning to exclude protection.

    Leftist silliness . . . Nothing more.

  8. Accepting lower courts as the final arbiters of limits on our rights is a mistake. To really go on the offense, we need a concerted effort to utilize the Article III Section 2 powers of Congess to systematically dismantle the abortion that is the federal court system.

    1. No… I think those poor judges are overworked, and we could use more of them! There’s no time like the present to get on that!

  9. Somewhere in the neighborhood of 40% of US District Court judges and 30% of Appeals Court judges have been appointed by Obama. For better or worse, this is likely Obama’s biggest and longest lasting legacy.

  10. There’s no reason Trump and the Republicans couldn’t double the size of every court, even the supreme Court. It would take a couple of weeks to complete. This is part of the checks and balances- when one group completely controls two branches of government they can override the third.

    1. It is my understanding that the Ninth is already huge enough as it is. It needs to be split up into three or four smaller districts first, and then each of those needs to be doubled in size.

      Even so, it’s nothing that Congress and the President can’t do.

      And while Sebastian’s “the courts are overworked” justification sounds sarcastic, we would do well to remember that there’s nothing sarcastic about it. If I recall correctly, there are lawsuits working their easy through the courts right now that make the case that defendants have to wait so long to get their cases heard, that it violates their right to a speedy trial.

      This is something we need to look at more closely: doubling the courts might not be enough.

      On the other hand, though, one might make the case that prosecutors are bringing too many cases to trial, in which case, Congress would have to come up with criteria for prosecutors to use to dismiss cases (cough:mens rea:cough). This doesn’t mean that we can’t change the court size; it just means that we don’t want to make the court system *too* big when we do expand it…

  11. Hostile Indeed!

    This recent Court ruling, as horrible as it is, is as nothing compared to some earlier rulings.

    There has been a huge string of rulings from the 9th Circuit going back for years which have eviscerated DC v Heller.

    It’s bad enough the 9th dragged out some cases for more than ten years before finally ruling against us. It’s bad enough the 9th ruled gun bans and carry bans as Constitutional. But the 9th even ruled as Constitutional a law which compels gun-owners to lock up their handguns at any time the handgun is out of direct control (for example, when sleeping), in direct contradiction to DC v Heller.

    My advice to all is to give up on any hope for relief from Court action. The States can and will do almost anything they want regarding gun-control and the Courts will not stop them.

  12. The Federal Courts hostility to the 2nd Amendment is nothing new. Remember that the 14th Amendment was for all practical purposes nullified by hostile Federal Courts (most centrally the US Supreme Court!) for decades. And the 14th Amendment still hasn’t fully recovered from the Courts malfeasance.

    1. Ironically, the 14th was explicitly passed to make sure that the 2nd applied to the States, because the South was passing laws forbidding free blacks from carrying guns. The Supreme Court gutted the 14th so that States can continue their gun restrictions.

  13. This case did not go south because of bad judges, the writing was on the wall quite clearly in Masciandaro. This is not a case of bad cases or bad defendants make bad law.

    These were bad LAWYERS. I know, that’s redundant, but this legal team has to have known that the 4th circuit is one of the most hostile to gun rights in the US,

    The USSC has telegraphed it’s unwillingness to take a RKBA case and that is leaving the clown show rulings as the law of the land, referable precedent, adoption as public policy and after a few scant years, “long standing prohibition” See how that works?

    This outcome was foreseen long ago, kind of like the recent 9th circuit ruling. We need to stop hurting ourselves here and start fixing the bad laws legislatively. I realize that in states like NJ, MD, etc. that’s a lost proposition, but there can be work at the federal level to remove some of these so called “long standing prohibitions” that are referred to at every level of the court system now.

    We got beat. Now, we can either keep getting beat, or we can do something that has a chance of success. Hail Mary court cases like this one don’t have a chance.

    1. Newsflash: some of us actually live in the states you’re chalking up as lost causes, and would like to have our grievances heard before tribunals that will engage with them seriously and competently. We’re not going to stop complaining when that doesn’t happen just because keyboard lawyers like you think the effort is better spent elsewhere. DIAF, HTH, HAND.

      1. That’s why I say we need to use Congressional power to destroy out of control federal courts. Break up the Circuit Courts, pack them with constitutional judges. Impeach bad judges. Make it clear legislating from the bench will not stand.

        1. The risk there is that you’ll make a precedent. Democrats will become determined, when they’re back in power, to fix things to their liking, either by their own court packing scheme, or by undoing your side’s gains.

          I’m not saying that’s not a reason to do some court packing, but it should be understood what the stakes are, and how that move would raise them.

          1. Respectfully, it’s way past time to raise the stakes. There has been a constant destruction of liberty since the authoritarian regime of Wilson, with absolutely no relent.

            Hell, it started with George Washington usurping the treaty power of the Senate with his “Proclamation of Neutrality” in 1793, followed by his usurpation of the Governor of Pennsylvania in 1794 by sending 12,000 troops into the state to put down the Whiskey Rebellion.

            Congress has to take back power through the People’s House.

  14. What a garbage ruling. There are so many examples of faulty logic reading through the opinion I lost count. My favorite has to be one the dissent pointed out:

    The opinion does not impact the M1 Garand, an actual military rifle used in WWII. So the “military like” doctrine bans guns the military does not use, but allows guns the military actually used in war.

    1. It is my belief that the peculiar 7 round limit of the NY State magazine ban was directly aimed at M1 rifles.

      Legislation like the NY SAFE ACT don’t originate from the legislators, they just rubber stamp legislative templates prepared by anti-gun organizations like the LCAV, the “Legal Community Against Violence”, a San Francisco based organization of anti-gun lawyers.

  15. Perhaps the courts need to be informed that we citizens are becoming increasingly hostile to the politically correct rulings of activist justices.

  16. Not so much a judicial finding as it was virtue signalling by the court. They know it will eventually be overturned by SCOTUS, they merely want to inconvenience gun owners in the meantime.

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