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

By David Codrea published on in News

U.S. District Judge Catherine C. Blake decided Tuesday against plaintiffs in Kolbe v O’Malley, a challenge to Maryland’s Firearm Safety Act, ruling “assault weapons” and their standard-capacity magazines “fall outside Second Amendment protection as dangerous and unusual.”Gavel with American flag

The Clinton-appointed judge went through double-jointed judicial contortions, revealing politically-motivated hostilities to be dissected by no shortage of legal scholars and pundits. They, and readers following their work, will be examining case details and disconnects, including prejudicial weapon descriptions, agenda-driven “expert” testimony, and myriad questionable assertions presumed by the court to be indisputable facts. Those include allegations of enhanced danger posed by the affected firearms, challenges to the effectiveness of the weapons in home-defense situations, dismissal of the relative distribution of such guns among the population, abuses of the demonized weaponry by criminals, and offensive police training comparison arguments used to undermine equal protection and disparage gun-owner competency. Those can then all be balanced against fraudulent “compelling state interest” and judicial scrutiny-level arguments, as if the security of a free State isn’t the most compelling interest, and as if unalienable rights don’t merit the strictest scrutiny.

In poring over the details, the core purpose behind the right — one the court showed deliberate indifference and more to — must not be overlooked. But Judge Blake did her best to make certain that it was.

“[T]he court seriously doubts that the banned assault long guns are commonly possessed for lawful purposes, particularly self-defense in the home, which is at the core of the Second Amendment right, and is inclined to find the weapons fall outside Second Amendment protection as dangerous and unusual,” she declared authoritatively, as if she actually knows what she’s talking about.

Not to diminish its importance, but does that amendment specify “the security of a free Home”?

Such misdirection is a major factor in why Judge Blake’s ruling bodes ill for contemporary gun owners and brings us closer to the planned obsolescence of the Second Amendment. At least that’s the goal.

Her misrepresentations did not stop there. She went on to use wording from a case gun owners regard as a victory against them. She did that through the “in common use at the time” qualifier cited in DC v Heller, in which the Supreme Court opined the right to keep and bear arms, while individual, came with limitations. Heller in turn relied on U.S. v Miller, a case from 1939 that found a short-barrel shotgun could not be determined protected under the Second Amendment because the court had no evidence its possession had “some reasonable relationship to the preservation or efficiency of a well regulated militia [or] that this weapon is any part of the ordinary military equipment, or that its use could contribute to the common defense.”

That’s the key point being ducked. 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 bore arms that were suitable for that purpose, “ordinary military equipment” intended to be taken into “common defense” battles. The militia did not assemble on the green bearing clubs and spears. They came with the intent to match and best a professional military threat.

The same still holds true, even if the government is intent on neglecting its Constitutional duties. If a weapon is in common use by soldiers, it’s part of that “terrible implement” clause Tench Coxe claimed as “the birthright of an American.” But by limiting arguments to “self-defense in the home,” Judge Blake was able to bypass all that.

That’s where John Cutonilli came in, with a motion to file a brief. He’s a Maryland resident who correctly identified himself as “a member of the unorganized militia.” His understanding came directly from 10 U.S. Code § 311 – “Militia: composition and classes,” defining “the unorganized militia, which consists of the members of the militia who are not members of the National Guard or the Naval Militia.”

Unsurprisingly, the judge denied Cutonilli’s motion.

With mundane considerations like that out of the way, the Brady Center had a clear field, to not only stump for denying 19th Century firearm technology to modern gun owners, but to put future developments forever out of our reach, which is the ultimate danger being posed. Arguing in its brief that the “common use” phrase “is of little help when evaluating the constitutionality of a statute far removed from Colonial-era military norms,” the Center failed to explain why they think so, no doubt because they have no intention of backing up their claims, particularly when “friend of the court” has a reciprocal meaning in their case.

“Suppose, for example, that a new, unregulated and highly lethal weapon were developed before a statute was enacted,” the Center speculated, arguing “the weapon would not be protected because it would not be in common use.”

In other words, every new development in personal weapons technology will, by default, be denied to We the People by the very body charged with facilitating a citizen militia and expressly forbidden from infringing with the right of the people to keep and bear arms. That the authorities have it in common use won’t matter. So much for Founding intent. So much for freedom.

Obviously this ruling represents a real danger, and not just to the people of Maryland. If it’s not overturned on appeal, all the Supreme Court has to do to let the law stand and be emulated is … nothing.

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



A long-time gun rights activist and grassroots leader, David Codrea has been writing professionally on the subject of the right to keep and bear arms since 1999. Initially writing for GUNS & AMMO magazine, then moving on to HANDGUNS before spending the last eight years at GUNS, where he is a field editor producing the monthly Rights Watch column.
Codrea was named Gun Rights Defender of the Month in April, 2007 by the Citizens Committee for the Right to Keep and Bear Arms for persuading the Bush administration to strike collective rights language from the Federal Register in an FAA ruling. In 2011, he was named Journalist of the Year by the Second Amendment Foundation for his groundbreaking work exposing the Fast and Furious ATF gun walking scandal, and was a co-recipient of Soldier of Fortune Magazine’s 2nd Amendment Freedom Fighter Award, and Jews for the Preservation of Firearms Ownership’s David and Goliath Award for his work on that story.


The views and opinions expressed in this article are those of the authors 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!

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Comments (328)

  • Warren


    I’d hate to see such a rebellion in this Country, but those of us that have lived so long and seen so much and suffered to keep this Nation as it was when we were young men, have watched in HORROR as the misinformed (such as Alex Hamilton) , and the sheep that believe the government is protecting them, allow matters such as this to happen, and allow it to snow ball until it will engulf this ONCE great Nation and it becomes nothing more than a pile a ruble, and as they die, and they will die at the very hands of the government they believe is protecting them, I wonder, what then will be their last thought ?
    I’ve taken bullets for this Nation, broken bones, and never once did I shed a tear, for I grew up in an age where a man did not show the emotion of tears. But friends, I weep each and every day now, for my children, my family, my Country and my Constitution! For I know now, that all I had suffered at the age of 17 was in vain ! As this Country and our way of life is in fact dying, and this Nation will soon no longer exist.
    BE AFRAID , BE VERY AFRAID , of what is called Government, to Include any and all POLICE Agency’s , they are NOT your friends, they are your enemy ! As much as it pains me to say that , it is true , as they take ORDERS from Government ! I’ve seen two (2) Pasco County Deputys open fire and execute a 90 lb. nude unarmed woman, here in Florida, and they were given a citation for bravery! Now imagine when the SHTF, just what they and every other law enforcement agency in this Country will do to the rest of us !!!!
    My words won’t save us, the word REBELLION won’t save us! Only a direct action by the entire armed population and the execution and/or removal of the entire super-structure of this Nation’s Government and the striking down of any and all alledged law that infringes in any way with the SUPREME LAW OF THE LAND (The United States Constitution) will save us and this Nation. And then to try and Convict and sentence to DEATH any person that so acted to infringe, change or harm the United States Constitution, as a WAR CRIME. THAT is the only way to truly save the United States Constitution and this once Great Nation.


  • chas.


    Warren well said..”When Tyranny becomes the Law, Rebellion is Your Duty”.. wait and see what Hillary does if she gets in..


  • Chas.


    Warren, I had s similar dream only the judges were burning the Constitution and the Bill of Rights and chanting with Hillary “We Are The Rulers, Now They Have No Rights”..
    “When Tyranny Becomes the Law, Rebellion Becomes Your Duty”


  • Alex Hamilton


    I would just like to point out . Not that it makes any difference now. That AR originally stands for Automatic Rifle. Even Pro-Gunners use the term assault weapon. My point being. Semi automatic rifles, no matter what they look like are legal. The AR-weapon is all ready unlawful to poses with out the proper license. All that was taken care of in the year of our lord. Aw, It slips my mind at the moment. Comes with old age. You all have a happy new year!


    • David


      Now your just feeding the histeria. I thought the AR- designation stands for Armalite Rifle, based on designs by Eugene Stoner, Robert Fremont, and L. James Sullivan of the Fairchild Armalite corporation. As for the above reference of AR Style weapons to be dangerous and unusual….Anything above rocks and pointy sticks can fit that catagory.


    • G-Man


      @ Alex Hamilton: Not trying to be insulting, I just have to ensure history is corrected when I see it passed on incorrectly.

      The AR stands for neither “assault rifle” nor “automatic rifle.” The AR stands for ArmaLite, which is the company (Fairchild Armalite Corporation) that developed this unique style of rifle for the United States armed forces back in the 50s.

      Due to financial problems Armalite sold its rights for its designs to Colt in 1959.


  • Glenn B


    There are two significant “a-ha’s” right out of the gate. 1. This case was tried in Maryland. 2. Catherine C. Blake was nominated to be a United States Federal District Judge in 1995 by (you guessed it) Bill Clinton.

    The author of this article, Mr. Dolbee, acknowledged that he is not an attorney; but then, when Judges legislate from the bench, one does not have to be a licensed attorney specializing in Constitutional Law to spot the glaring departure from reality and objectivity that was demonstrated in this woefully misguided Judge’s “logic.” One must ask, “What part of ‘shall not be infringed.’ does she not understand?”

    Although Mr. Dolbee is not an attorney, his logic is irrefutable and his “legal reasoning” is spot-on. I know because I have been an attorney since 1978. I have also taught Constitutional Law. It’s really unfortunate that Judge Blake did not have the benefit of one of my classes. But then over-the-top liberal Federal Judges have never been accused of being overly objective or having unbiased integrity; and they certainly don’t want to be bothered with the unequivocal language of the Amendments to the United States Constitution.

    By the way, AR-15’s and similar weapons are very commonplace among law-abiding Americans, MANY of whom use them for home defense. By falsely labeling these guns “Assault Weapons,” the anti-gunners think they have created a stigma associated with that weapon. The “stigma” resides only in the minds of the anti-gunners.

    Another irrefutable fact is that the citizens of virtually EVERY country on the planet that has implemented gun bans and gun confiscation have been the victims of non-stop violent criminal activity, and unspeakable mass genocide at the hands of the governments that banned and confiscated the guns. The reason the Second Amendment is second only to the First Amendment is to enable the citizens to protect the Rights provided by the First Amendment.

    The Second Amendment was not created so that people could hunt squirrels or engage in target practice. It was included in that precious document to protect us from an oppressive and tyrannical government, such as the one we are currently enduring.

    Make no mistake: Banning AR’s and similar LEGAL weapons is merely the “thin end of the wedge.” We the People must not allow our right to keep and bear arms to be disturbed even in the slightest, by a tyrannical government.

    If we do not stand firm, America will just be another statistic of how gun bans and confiscation resulted in either a giant spike in violent crime (the felons ALWAYS get guns because they don’t believe that laws apply to them), or the government’s slaughter of millions of law-abiding citizens who would dare to question the government’s authority in accordance with their absolute rights provided in the FIRST AMENDMENT. Without the Second Amendment to protect the First, there will be no free speech; nor will there be any liberty. We would all be subjects of an all-powerful Imperial Government. And ladies and gentlemen, it’s getting dangerously close to that scenario.

    Returning to the issue or “shall not be infringed,” this phrase is a command, not a “suggestion.” The words, “shall not” do not invite further interpretation by a liberal judge whose decisions are frequently governed by her politics; and the mandatory and prohibitive words of the Constitution and its Amendments should preclude judges from adding inferences when none exist.

    This reminds me of a one-liner by a stand-up comic who was describing Moses and the Hebrews during the Exodus. “Look, it’s Moses coming down from the mountain with two tablets which contain the Ten Suggestions.”

    Rather than continuing to appeal this deplorable and clearly erroneous decision, I would recommend that responsible, law-abiding, American, patriotic gun owners get the hell out of Maryland. And for God’s sake DON’T move to New York, Illinois, or California.


  • f*ck u


    Time to prepare for war..


  • Warren


    The problem here is the same thing over and over again! All we do is talk and then listen to fools that don’t have any idea what the true meaning of the 2nd Amendment is! Or listen to feds that pretend to truly care about the Supreme Law of the land, but they don’t. I’m an old man now, I’ve seen a lot, at 17 I was ass deep in the shit hole of Nam fighting to keep the Supreme Law Of This Land and our people safe, just as my grandson is in the desert fighting now, because he believes like I did and my father did during WWII , that it was all worth it. Now we have worthless individuals that NEVER shed a drop of blood to protect what we “HAD”! NEVER held a Brother in their arms as his last breath was drawn on a battle field , destoring what we fought for, simply because they can. And we have our sons,daughters, grand children bleeding and dying today for the same ideals, and it don’t mean a thing. Because all we are gonna do is talk, because “WE” have mostly raised a generation of degenerates and perverts, and it seems that their existence means more than this Nation as a whole, not to mention yet again The Supreme Law Of The Land.
    “I HAD A DREAM”, a terrible war is coming! Not in a far away land, it is coming here to our home, God has abandoned mankind, as most of mankind has abandoned God! I saw children being devoured by the degenerates and perverts and the Judges ruled that it was good! I saw children turning on parents and killing them, and the Judges said this too was good ! Then I seen men rise up and try to take back what the Judges gave to the degenerates and perverts, good men and good women, but they were ordered slain by the Judges! And the degenerates and perverts danced with the Judges and they all proclaimed that it was good ! Then I seen a RED Flag of an invading Army, and I woke in a cold sweat, because I know in the very near future, there will be NO America!
    You can call me crazy, I don’t care. I’m Old and I’m white. Martin Luther King had a dream, they called him crazy, and killed him to silence him. But his DREAM came to pass. AS WILL MINE!!!
    This Country has sat back and bounced it’s gums to the point of NO RETURN, and we are all damned for it, and we have condemned our children, grand children and great grandchildren because of our holier then thou attitudes. And make no mistake about it, even God has condemned us! Anyone that believes different has their head up their backside. All of our personnel weapons won’t matter, because the Federal mandate is to disarm ALL U.S. citizens within the next seven (7) years. That is a fact from a very reliable source that is very high up in the Federal Government today. It is amazing how some booze will make a person’s tongue loose during the holidays. Resist , oops!
    This is the real world, this is what WE THE PEOPLE allowed the government to do when you all voted Obama in for a second term!


  • steve


    The Second Amendment guarantees the rest.


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