4th Circuit Court of Appeals Trying to Kill the Second Amendment?

By CTD Blogger published on in Legal

It has been seven long years since the Supreme Court last heard a case dealing with the Second Amendment. However, with confirmation hearings for Judge Neil Gorsuch, there’s renewed hope that the nation’s high court will once again weigh in on one or more of the many cases having to do with our right to keep and bear arms.

By Cam Edwards

Gavel in front of a blurred out American flag

There’s no doubt that in the years since the court last spoke in the McDonald v. Chicago case, striking down Chicago’s ban on handguns, lower courts have twisted the Second Amendment beyond all recognition in their zeal to uphold as many gun control laws as possible. The 4th Circuit Court of Appeals, in particular, has managed to nearly write the Second Amendment out of existence in a series of decisions issued over the past few years.

Most recently, in the Kolbe case, the 4th Circuit ruled that not only does Maryland’s ban on guns it deems to be “assault weapons” withstand constitutional scrutiny, the arms in question are not even protected under the Second Amendment! Ten judges on the court ruled that these semi-automatic firearms are “like” the guns used by our military in combat theaters, and since the Heller decision said that “weapons that are most useful in military service—M16 rifles and the like” could be banned, these commonly owned firearms fall outside of the scope of the Second Amendment.

The 4th Circuit Court of Appeals… has managed to nearly write the Second Amendment out of existence in a series of decisions issued over the past few years.

In the Woollard case, decided by the 4th Circuit in 2012, Maryland’s restrictive policies for issuing concealed-carry licenses were upheld in a divided vote. Despite the fact that residents cannot obtain a concealed-carry license for the purposes of self-defense, and no provision allowing the open carrying of firearms exists in Maryland, the court held that since the state has a “substantial government interest” in reducing gun-related violence, the restrictions on the Second Amendment rights are permissible.

More recently, the 4th Circuit leveled another assault on the right to bear arms in handing down its decision in the case Robinson v. United States. Early in 2017, the court ruled that carrying a firearm, even legally, creates a presumption that the gun carrier is “armed and dangerous.” In fact, the court went out of its way to say that to be armed is to be dangerous, and by exercising your Second Amendment rights, you lose some of your Fourth Amendment protections against unreasonable searches and seizures. In a concurring opinion, Judge James Wynn wrote that anybody and everybody who legally carries a gun is “categorically dangerous.” Adding injury to insult, the judge went on to say that those individuals exercising their right to bear arms “sacrifice certain constitutional protections afforded to individuals who elect not to carry firearms,” and therefore open themselves up to police searches simply because of their lawful carry.

To point out the errors in these decisions would take a book, not a column…

To point out the errors in these decisions would take a book, not a column, though each of these decisions did come with dissenting opinions that are worth reading. Still, despite the rebukes in each of these cases, the fact is these decisions carry the force of law from Maryland down to South Carolina. For tens of millions of Americans, the right to keep and bear arms doesn’t encompass the right to own the most popular rifle in the United States, or to bear arms for self-defense outside of the home, or even to have a conversation with a police officer without being frisked and disarmed. Imagine similar restrictions on the exercise of the First Amendment: Your freedom of the press doesn’t extend to modern communications like social media or email, you don’t have the right to your freedom of speech outside of the home, and that carrying a sign at a political rally or protest gives the police the authority to frisk you because you’re considered “dangerous.” Decisions like those would gut the rights protected by First Amendment, just as the 4th Circuit Court of Appeals has gutted the rights protected by the Second Amendment. Hopefully, the Supreme Court will step in soon and reaffirm what it has already told these lower courts: The Second Amendment is a real right, a fundamental right, and it must be respected and protected.

Are you hopeful that the Supreme Court will soon hear pending Second Amendment cases? Which of the 4th Circuit cases mentioned in the article would you like to see a ruling on first? Share your answers in the comment section.


Cam Edwards is the host of “Cam & Co.,” which airs live 2-5 p.m. EST on NRATV and midnight EST on SiriusXM Patriot 125. He lives with his family on a small farm near Farmville, Va. Follow him on Twitter and Instagram @camedwards.

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Comments (35)

  • Boomhawr

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    One thing that gets me is that people only relate the second amendment to FIREarms. It doesn’t say “firearms ” it says “arms”. FIREarms is only 1 subcategory of arms. There are many other types of arms. In the Revolutionary War, the same basic time frame as when the Constitution was written, other arms such as large hunting knives and more where used by the “well regulated militias” as well. So the 2nd says “Arms” and would cover more than just FIREarms.

    Reply

  • Trooper

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    All I can say is, if they do manage to ban certain weapons or even ban all and revoke concealed carry, there will be a lot of instant criminals living all around us (and U.S) including ourselves, because I do not see the majority of gun owners giving up even one round of ammo ! That is just the way it is . We recognize the U.S. Constitution as the final ‘Law of the Land’ as intended and stated by our forefathers. Not what is opinionated by a bunch of ‘pantie waste’ liberal judges !

    Reply

  • Boss

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    So the guns that are allowed for citizens to have are not to be suitable for war? Then whats a Militia for? Why included in second amendment. Lets go join a Militia and fight with hunting rifles. Judges can’t read!

    Reply

  • Bill S.

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    The second amendment doesn’t grant the right to bare arms it in fact prevents the government from infringing on those inalienable rights. We need to start reminding activist socialist judges their opinions have no bearings on our Constitutional protections.

    Reply

  • scozad

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    “There are four boxes to be used in defense of liberty: soap, ballot, jury, and ammo. Please use in that order.”
    -Ed Howdershelt (Author)

    So far the Soap box is being crushed underneath us. Those who would destroy this country are making sure of that.

    The Ballot box is all but a joke and smoke and mirrors. No matter WHO you vote for it’s the same thing over and over. Why? because the same powerful people at the top pull ALL the strings. This is why even Trump is failing.

    Jury box – well this article says it all.

    What’s left of the four?

    Reply

  • steve berman

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    ah..so what is a weapon? a bayonet is a weapon right?? of course, so we should ban all dinner knives? how about pen knives ?? You laugh- I was not allowed to take a small knife into a Civic Center in downtown Brooklyn NY. I now live in NC

    Reply

  • DEL

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    when the 2nd amendment was added…early American citizens not only had a right to keep and bear weapons similar to the ones used by the military, they were allowed to keep and bear the EXACT SAME weapon used by the military. It’s time to put some serious effort in to clearing the judicial house of men and women who want to over step their constitutional authority and write laws rather than interpret them. Congress (elected) writes the laws….Executive executes them (elected) the judiciary interprets them (appointed).

    Reply

  • fair

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    The Heller decision is not what it’s cracked up to be. The Heller decision said that “weapons that are most useful in military service—M16 rifles and the like” could be banned. Can anyone read plain English? Several courts have said AR-15 can be banned. The new Supreme Court nominee Gorsuch has said he will uphold Heller. Get ready for your AR-15’s to be banned.

    Reply

    • B.Zerker

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      fair, The “in common use at the time” language from U.S. v. Miller that Scalia used in his Heller decision protects the AR-15 from being banned because millions of them are “in common use” in the U.S. at this time. To ban or criminalize their possession now would be a breach of Article I, Sec. 9, Clause 3, which clearly states that: “No Bill of Attainder or ex post facto Law shall be passed.” As for the states that are currently doing this, they are in breach of the U.S. Constitution in this regard. As for “fully automatic arms” (the M-16, etc.) they are not ‘in common use at this time’ because they were unconstitutionally regulated by our over-reaching federal government in 1934 with the passage of the NFA and then nearly prohibited by the GCA in 1968.

      Reply

  • B.Zerker

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    These 4th Circuit’s majority decisions in each of the cases mentioned blatantly ignores and contradicts existing SCOTUS precedent.
    1) Marbury v. Madison (5 US 137) dictates that: ‘No provision of the U.S. Constitution is designed to be without effect and ANYTHING that is in conflict with the people’s guarantees contained within it, is null and void of enforceable law.’ Are the 1st, 2nd and 4th Amendments not guaranteed to the people in the text of the Bill Of Rights? Therefore, aren’t they a contract in writing with said people?
    2) Murdock v. Pennsylvania (319 US 105) makes it unconstitutional for any state to convert any right that is secured by the U.S. Constitution into a privilege and charge a fee (acquiring a license/permit and class time) in order to freely exercise that right. This precedent makes the entire United States (and its territories) a “constitutional carry” zone because nowhere in the text of the 2nd Amendment does it state that governments have the ability to regulate or restrict this “people’s right” in any manner. To the contrary, it specifically dictates the this right ‘shall not (an order to govt.) be infringed (restricted)’. 3) In addition to Murdock, there is Shuttlesworth v. Birmingham, AL (373 US 262) which dictates that: ‘If the state does convert a secured constitutional right into a privilege, that the people can ignore the requirements of a license and/or fee and engage in the exercise of that right with impunity.’
    4) Then there’s always U.S. v. Bishop (412 US 346) which dictates that for anyone to be convicted of a criminal violation, without actually harming anyone, that he/she must be found to have had prior “willful intent” (an evil motive). How can any prosecutor prove that of someone that is simply exercising his/her constitutionally secured right to bear arms?

    The 4th Circuit’s disregard for “settled” SCOTUS precedent in order to usurp the people’s guarantees is unlawful and should any of these decisions eventually reach the SCOTUS, they will undoubtedly be found unconstitutional.

    In the mean time, the people governed by this court’s opinions do however have “remedy and recourse” in these matters. It is found in Article III, Sec. 1, which states that: “The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour,…”. Could not purposefully ignoring and contradicting settled SCOTUS precedent to obtain an unconstitutional and probably a predetermined and ideologically slanted outcome be considered “bad behavior” – and shouldn’t these obviously partial judges be removed from “Office” for this breach of Article III? What’s more, it’s a federal felony under Title 18, USC, Sec 242, for ANYONE, judges included, to unlawfully (the Constitution is the law, unconstitutional statutes are not) deprive anyone of their constitutionally secured rights.

    Reply

    • James

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      I agree 100%. This is the best narrative I have ever read.

      Reply

    • Randall Anderson

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      This is wonderfully articulated. Perhaps the most important question is: How do we go from preaching to the choir and get these thoughts to those who need to hear them in a form that will actually have impact? Confrontational communication does not work.

      Reply

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