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.”
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 Magazines 2nd Amendment Freedom Fighter Award, and Jews for the Preservation of Firearms Ownerships David and Goliath Award for his work on that story.
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