Latest 4th Circuit Gun Ban Decision Highlights Legal Danger for Militia-Suitable Arms

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Rather than send the Maryland firearm and magazine ban case back down to a lower court as ordered by a three-judge panel last month, a majority of the Richmond-based 4th Circuit Court of Appeals voted to rehear the case in May, The Washington Post reported. Maryland’s edict “bans the possession or sale of more than 45 types of assault weapons.”

The lawsuit challenging Maryland’s ban, enacted by “we must do something” opportunists following Sandy Hook, resulted in what attorney Andrew Branca called a “Big #2A Win,” in that  the panel applied “strict scrutiny,” a standard of legal review requiring a “law must advance not merely any governmental interest, but in particular a compelling governmental interest [and] the law must also be narrowly tailored to actually achieve that interest.”

That’s a much higher bar to meet than “intermediate scrutiny,” which pretty much allows a government to get away with whatever it wants with an unproven “public safety” claim. Under strict scrutiny, Branca noted, “the vast majority of gun laws currently on the books would inescapably be found to be unconstitutional infringements of the Second Amendment, and discarded.”

We reviewed the case last month, noting that positive news aside, a danger still exists until such time as another standard applied to “legality” of weapons – “in common use at the time” – is irrevocably recognized as meaning what a militia would need to fulfill its function:

The function of the militia, defined as “all males physically capable of acting in concert for the common defense [and] bearing arms supplied by themselves and of the kind in common use at the time,” was — and is — to field citizen soldiers. And these citizens must bear arms that are suitable for that purpose, “ordinary military equipment” intended to be taken into “common defense” battles.

Last month’s panel dissenter had no problem twisting his “reasoning” to assert that denying semi-autos to We the People was perfectly consistent with “shall not be infringed.” That’s the kind of double-talk we’d expect from a Clinton appointee.  But what about the rest of the court?

See for yourself.

The Chief Judge is a Clinton man. Plenty of the others were Obama nominees. And just because some were seated by Republicans hasn’t always meant that much, especially keeping Carroll Quigley’s admission in mind:

“The argument that the two parties should represent opposed ideals and policies, one, perhaps, of the Right and the other of the Left, is a foolish idea acceptable only to doctrinaire and academic thinkers. Instead, the two parties should be almost identical, so that the American people can ‘throw the rascals out’ at any election without leading to any profound or extensive shifts in policy.”

Who thinks the elites want the “rabble” to be able to say “No” and back it up?

What happens from here is, at best, uncertain. Pessimistically, I expect the court to look out for the interests of the state — they must realize what Branca observed about all “gun control” edicts being vulnerable. I also expect the “precedent” to be applied in other districts.

Either way, expect an appeal. And then, as always, all the Supreme Court has to do to let a bad law stand is… nothing. Assuming the ban is upheld, if they don’t hear the case, that decision will stand. If they do take it on, we’re dealing with a 4-4 split with Scalia gone, and that’s best case scenario, assuming John Roberts doesn’t side with Obama and the Democrats again. And who knows how soon we’ll be back to a nine judge court – or who will be picked to replace Scalia?

No one has a crystal ball. That said, prepare for the worst. Especially if the Republicans manage to alienate enough of their base to put Hillary in the Oval Office, assuming she has enough dirt on all the key players to keep from ending up behind bars.


Imagine the case being made in 1775 that this man had no right to his gun, and it was in the interests or public safety to take it from him– in other words, Gen. Gage’s position. Now imagine some Tory arguing such a gun was not in common use at the time. These lying arguments are exactly what modern gun-grabbers claim about today’s militia-suitable arms, and our right to keep and bear them.

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