Federal Judge Says AR-15- and AK-style Rifles Not Protected by 2A

By Dave Dolbee published on in News

The recent ruling upholds Maryland’s Firearms Safe Act, which was passed in September 2013. Pro Second Amendment groups challenged the legality of the law banning modern sporting rifles and magazines with a capacity of more than 10 rounds. The fact that a judge would uphold legislation is no more surprising than a judge who strikes down legislation—legislating from the bench is commonplace. What separates this decision is the apparent bias, misinformation and flawed logic demonstrated in the opinion issued by the federal judge.

Disclaimer: The views and opinions expressed in this article are those of the author and do not necessarily reflect the official policy or position of Cheaper Than Dirt! Inc., its employees or management. Analysis performed within this article are only examples and for informational purposes intended to promote an open exchange of information. Publication of any assertions made within this article or analysis are solely those of the author and in no way should be construed to reflect the position or policy of Cheaper Than Dirt!

banned ar-15

In an effort to be fair and adequately report on the judge’s decision, we must use the language in the decision. Therefore, please excuse the use of the misleading terms such as high-capacity magazines to describe any magazine capable of carrying more than 10 rounds and semi-automatic sporting rifles such as AR-15s.

The amicus brief in support of the Maryland law continually refers to MSRs as assault weapons. In fact, it goes so far as to use a flawed logic pattern to link to the AR-15 to the M16. The brief the judge appears to have weighed heavily, states the features of an M16 as having select fire for either full auto and semi-auto fire or 3-round burst and semi-auto. It then goes on to state soldiers are instructed that semi-auto fire is more accurate and deadly ergo an AR-15 (semi-auto only) is an assault weapon.

This obviously flies in the face of laws regulating machine guns. But it gets worse.  A review of case law set in the District of Columbia v. Heller finds, “the Supreme Court found that the Second Amendment codified a pre-existing, individual right to keep and bear arms and that its core protection was the right of “law-abiding, responsible citizens to use arms in defense of hearth and home.” 554 U.S. 570, 592, 635 (2008).”

However, in this ruling the judge dismisses Heller by stating, “…it only protects those that are “‘in common use at the time,'”18 and “typically possessed by law-abiding citizens for lawful purposes.”19 Id. at 625, 627.”

Gabrielle Giffords with Ar-15 in hand

Not in common use? Once upon a time this Senator would have disagreed.

Certainly it should be easily agreeable that AR-15s et al. are in common usage. At one point that judge admits that there are over 8 million such firearms in lawful gun owners hands for lawful purposes, but later minimizes this fact by stating “assault weapons” make up only 3% of firearms and thus are not in common usage.

“Upon review of all the parties’ evidence, the court seriously doubts that the banned assault long guns are commonly possessed…”

“…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.”

This flawed logic refers back to Heller in which handguns were main subject and were quoted as 43% of lawfully possessed firearms, but this does not lessen the impact of some 8 million-plus!

“…evidence beyond their desire to possess assault weapons for self-defense in the home that they are in fact commonly used, or possessed, for that purpose.”

Really? No evidence the “assault weapons” are commonly used for self-defense in the home? Does the judge realize the number of firearms kept at home for self-defense that (thankfully) are never actually employed for that purpose? Keeping a gun at home for self-defense is vastly different than statistics showing the number of times a particular weapon was used for that purpose.

Two people with dark ski masks breaking into a home through the sliding glass door.

How would you respond if more than one person in your home broke into your home?

The judge later dig a deeper hole with the statement, “the plaintiffs proffer no evidence beyond their desire to possess assault weapons for self-defense in the home that they are in fact commonly used, or possessed, for that purpose.”

Worse than that was the judge’s treatment of what was referred to as “large-capacity magazines.” From the judge’s opinion, “across the nation, LCMs represent 75 million, or 46 percent, of all magazines in U.S. consumer possession between 1990 and 2012. (Curcuruto Decl., Ex. A, ¶ 6; see also Koper Decl., Ex. B, at 1 (stating that gun industry sources estimated that, as of 1995, there were 25 million LCMs available in the United States, and that an additional 4.7 million LCMs were imported into the country from 1995 to 2000). Marylanders owned about 725,000 of those LCMs during that time.”

Then, she completely abandons any further mention of LCMs. Was this not an important fact, or did it simply not fit the narrative? Assault weapons were not considered “in common usage” because they only accounted for 3% of lawfully possessed firearms, so why was 46% not considered in common usage? And if citizens lawfully possess 75 million magazines for a platform, how can that platform not be considered in common usage?

Flawed Logic?

Judge: “In attempting to further the state’s important interests, the legislature is not required to refrain from acting until it has evidence demonstrating proposed legislation will certainly have the desired effects. It is allowed to make predictions.”

See Turner Broadcasting Sys., Inc. v. F.C.C. (Turner I ), 512 U.S. 622, 665 (1994) (“Sound policymaking often requires legislators to forecast future events and to anticipate the likely impact of these events based on deductions and inferences for which empirical support may be unavailable.”).

Tactical medicine scenarios with medics, instructors and victims

Without an effective mean to defend yourself, you’d better invest in a good tactical medicine course.

While it is true that legislators do have to forecast certain events such as budgets, , it takes more than a small leap to suspend the Second Amendment or reasonably believe that outlawing certain classes of firearms, magazines or cosmetic features would prevent murder/suicide. In the Turner case, the Supreme Court stated the speech was neither favorable nor unfavorable in requiring cable companies to carry local channels and prevented a minority from using their economic power to control speech and thus inline with the First Amendment. The requirement from lawmakers, without proof that the cable companies would unfavorably their economic power was deemed appropriate. Was that a far cry from the current justification of denying access to hundreds of thousands of lawful gun owners?

Who’s on First?

The witnesses that were challenged and allowed opens a whole other can of worms and the logic trail is confusing enough to be akin to the classic Abbott and Costello skit.

The first witness challenged was Christopher Koper. The judge states Koper was qualified due to his works in studying the 1994-2004 Assault Weapons ban, which concluded in fact the ban was not effective or responsible for decreasing crime. Yet, the judge goes on to justify allowing the testimony, because Koper suggests other factors may have made it more effective and the Maryland ban did not have certain portions of the AWB, which somehow would make the Maryland law more effective…

The second witness challenged gets even better. Dr. Daniel Webster was challenged stating he had not done any original research and was relying on the works of others, primarily Koper. In essence, it appears Webster’s testimony was heavily based on Koper’s works. Koper than validated that Webster’s testimony was correct and factual. In essence, Koper was credited with validating his own work via Webster! It reminds me of the old tale about two ugly twins telling each other how pretty they look.

Second Amendment

Webster also included data from the Mother Jones publication, which he had independently analyzed from an expert. Who was the expert? None other than Koper! By the way, Mother Jones was named after Mary Harris Jones whose accolades include being a member of the Social Democratic Party and the Socialist Party of America. Michael Moore was the editor of the publication for two years before suing for $2 million for wrongful termination.

Judge for Yourself

There seems to be so much more wrong with this decision and the reasoning cited by the judge. Going to the government’s own documents and requisition orders you can easily see where the government considers 30-round magazines as standard capacity. The government defines an assault weapon as having capabilities simply not found on semi-automatic-only versions. The fact that one firearm is more accurate than another or of firearms made 200 years ago hardly justify upgrading their status to “assault weapon.”

It is important to note that I am not a lawyer, do not understand all of the intricacies of the law and case, and make no pretense that my ramblings would pass legal muster—however, even lacking a law degree, I have a working nose and this does not pass the smell test. Be sure to take the time to read the decision and making your own judgment.

What is your take on the judge’s ruling. Share it with us in the comment section.

Related article: Court Upholding Ban on Militia-Suitable Firearms Ignores Key Second Amendment Purpose

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Comments (214)

  • Hey

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    This judge should step down from the judgeship position. Personal beliefs are not allowed in important decisions. Personal beliefs that are flawed.

    Reply

    • supergun

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      The judge is dead wrong.

      Reply

  • John Franco

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    Very powerful stuff you wrote, and ALL true!

    Reply

  • Rocky

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    Dogbert said; “Since modern sporting rifles are used in less than 1% of gun murders and banning them has had no impact on crime, why does the government want to ban them so bad?”

    In the last century, over 170 Million innocent persons were murdered by their Own Governments, who first disarmed them. Recall Hitler’s Nazi Germany, Mussolini’s Fascist Italy, Lenin and Stalin’s Soviet Union, Mao’s Communist China, Kim Il Sung’s Communist North Korea, Pol Pot’s Communist Cambodia, Amin’s Dictatorial Uganda, Communist Mandela’s South Africa, et., al., ad infinitum.

    What all of theses countries had in common was totalitarian governments, that were all far Left of Center, on the American Political Continuum. (which is different than the European Political Continuum, that we learned about in school). On the American Political Continuum Anarchy, or No Government, is considered to be ‘far Right';, while Totalitarianism, or Excessive Governmental Control, is considered to be ‘far Left’.

    Our nation’s Framers considered all government to be inherently ‘evil’, but recognized that a modicum of government was necessary to allow for civilization to prosper without fear of violence. Thus only the least amount of government necessary is what those on the Right desire, while those on the Left want the Government to be their Momma and Poppa, taking care of them, from cradle to grave. Because government cannot flourish, where Freedom Reigns, those in favor of such Totalitarianism intend to take away our firearms (our means of defending our Liberties) in order to subjugate us to their authority.

    They often LIE a Lot in the process. For instance; Fully 98% of America’s violent crimes are being perpetrated by a mere 3-5% of our populace; young, male minorities, with young, black males committing more of said violent crimes, than young, Hispanic males and young, white males, combined. To the extent that the #1 cause of death for young black males, is Gunshot, by Other young, Black males. (FBI Statistics)

    It behooves the Left to alter the facts, In order to create a fear of Firearms, in the gullible minds of the low information public. Such as we’re now seeing, in graduates of the ‘Public Indoctrination System’ (formerly the Public Education System). Such indoctrination is causing an epidemic of Hoplophobia, in urban and suburban America.

    They are also Lying about the Police killing Blacks. There are more Policemen killed annually, by criminals, than there are blacks killed by Police , yet you’ll never hear that on the ‘Lamestream Media’. It behooves them to spin a tale of Racism, in order to achieve their desired ends. If racism was as prevalent as some would have you to believe in America, we wouldn’t have a Black President, Black Attn’y. Genr’l. Black Congressmen/women and Senators, Black Governors, Black Mayors, Black Councilmen/women, etc.

    Remember the a mere 6 Corporations control ALL of America’s Media outlets!!! Including Fox News! You simply cannot believe what you see and hear from any of them ! Dig into the alternative news, online, to find out the Truth about what’s truly going on in our country. It’s not pretty…

    Hoplophobia, a serious mental illness, is an irrational fear of firearms, which could require extensive therapy to recover from. Both educational, as well as plenty of range time.

    Reply

  • Dogbert

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    Since modern sporting rifles are used in less than 1% of gun murders and banning them has had no impact on crime, why does the government want to ban them so bad?

    Reply

  • Rocky

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    Grump Dog; I’m glad to see that someone, other than I, is aware of the multi-generational scheme, begun by the former Soviet Union, to destroy America from within. They are, now, on the final leg of their plan, with the usurpation of our Office of the Presidency, by the ineligible Manchurian Candidate, Barry/Barack/Harrison Soetoro/Soebarkah/Obama/Bounel (or Whatever his Real Name is).
    Apparently Both Houses of Congress, the Federal and State Courts coupled with the ‘Lamestream Media’, are All in Collusion together, given their blatantly ignoring this heinous abrogation of our Constitutional requirements for that Office. Worse yet, some of the more ‘conservative’, would-be candidates (Trojan Horses All) for that office, in the 2016 election cycle, are no more eligible, than the current Illegitimate Squatter in the People’s House’.
    At one time, it was a toss up, as to whether International Communism, or the United Nations, would end up running their, long desired, One World Government. However, recently, UN Secretary General Ban Ki Moon has stated that “Only Global Communism can save the World from ‘man-made Climate Change’.” So we can see just where we’re headed and who the enemy really is. As always, of course, behind the scenes are the invisible moneyed elites, pulling the strings of their puppets, ever striving for their long sought global Fascist Oligarchy.

    Reply

  • ZZ Rock

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    Good comment

    Reply

  • Rocky

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    rich; The USA was established as a Constitutional Republic. It has never been any sort of ‘democracy’. Our Framers abhorred democracy as a fragile and oftimes short lived phenomenon, that usually devolved into Anarchy, then further into Tyranny. I grant that with the passage of the 17th Amendment, we lost a major ‘Balance of Powers’ separation, by removing the State’s representation to the Federal Government.
    ‘Democracy’ these days is a catch word by Socialists/Communists agitators. It became popular, only in the last century, with the elections of a series of ‘Progressive’ (Socialist) Presidents and Congressmen/Senators. The ‘Progressive Congressional Caucus’ is the bastion of Socialism & Communism in this country. If your elected reps are on it, dump them ASAP.

    Reply

    • Grump Dog

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      “‘Democracy’ these days is a catch word by Socialists/Communists…”

      Precisely, especially if you go back and include the last 50+ years or so in “these days.” Hence the communist toilets like – Democratic Republic of Germany (E. Germany), Democratic People’s Republic of Korea (N. Korea) and any number of communist / socialist utopias that sprang up after WWII. Communists have always used words to camouflage their true intent, it is part of their doctrine. Unfortunately, “these days” we have less vigilance and more tolerance than we need and the people who should be watching our backs are a product of the indoctrination outlined by the communists here;

      http://www.communistgoals.com/goals/goals.htm

      Take note of all the green check boxes…

      Reply

  • Jose A Velez

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    those are the kind of judges that.should step down from their position. Did you not believe the rule of law. They also don’t understand the Constitution and they sure don’t understand the 2nd amendment.we’re not living in 1776 we are living in. 2015.the Liberals have been after our guns for a very long time and there was stop at nothing we the people must stand up against .a government who thinks they can rule like England Germany this is America that’s why way the founders of the Constitution.wrote it the way it is written long live the Republic

    Reply

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