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

Gavel in front of a blurred out American flag

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.

The Mission of Cheaper Than Dirt!'s blog, The Shooter's Log, is to provide information—not opinions—to our customers and the shooting community. We want you, our readers, to be able to make informed decisions. The information provided here does not represent the views of Cheaper Than Dirt!

Comments (35)

  1. 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.

  2. 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 !

  3. 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!

  4. 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.

  5. “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?

  6. 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

  7. 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).

  8. 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.

    1. 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.

  9. 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.

    1. 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.

  10. Judge James Wynn wrote that ANYBODY and EVERYBODY who legally carries a gun is “categorically dangerous.”

    WOW !!!! I am already eccentric (lol) but if I was also rich I would go to Maryland, driving with a very minor vehicle defect (like a tail light out) and wait for the blinking red and blue lights to show up in my read view mirror. I would stop my car and exit it and than run like hell. of course I would be chased and taken down and handcuffed and probably arrested. I would contest my conviction up thru the system until arriving at the 4th court of appeals and just DARE that Judge James Wynn to NOT rule in my favor, repeating to him his very words that ANYBODY and EVERYBODY who legally carries a gun is “categorically dangerous.”, and I ran because I feared for my life.

    Where did this jerk get his law degree from? I gotta wonder if he has ever read the constitution, which I’m sure he took the oath to defend and preserve.

    OH WAIT, He was appointed by that, Illegal, UN-constitutional, (as in NOT born a citizen of this country – and should be arrested and jailed for his fraud) Do anything to destroy America, president! BHO !

    Would just love to see the FBI arrest that pretender haul him away in handcuffs and try him for his fraud, and once convicted, part of the court ruling would be ” Since he held the office of POTUS illegally than everything he did while in that position becomes null and void, all executive orders, laws signed, and or course all appointments. And on top of that , since he was NEVER legally POTUS than he is removed from the position as the 44th POTUS and trump moves from 45th to 44th. Also since such a fraud (in my mind at least) makes him an radical islamic terrorist, and should spend the rest of his sorry life at GITMO with absolutely NO chance of parole.

  11. Dear President Trump,

    There is an awful smell coming from the 4th Circuit Court of Appeals. I know you’re busy but please drain that unconstitutional swamp ASAP !

    Thank You
    A Loyal Patriot

  12. What is really dangerous to all Americans are activist judges who don’t stand up for the constitution but try and rewrite it in their own socialist/communist image. They are not stupid and they are fully aware that the founders wanted the American people to be armed well so as a last resort to go against a corrupt and out of control government or anyone who is a danger to their families. They could not have made it more clear. The founders never mentioned anything about registering their weapons or getting any kind of permission from the all powerful government either.

  13. “Yes judge.. you were, indeed, driving the legal speed limit… regardless… we have to impound your car. You see.. your vehicle LOOKS like it could go much faster if you wanted it to.

  14. By the courts thinking, there is no absolute rule or law, or any end to this. It is actually what ever a judge wants to decree, at the current time! This is not law, it is mob rule, it is dictatorship by judges!

    When are people going to stand up and purge these liberal idiots!
    The longer it is not done, the more violent it will become!

  15. I’ve been waiting for the SCOTUS to take up a 2d Amendment case for some years now. Each year which passes increases the number of outrageous lower court rulings which the SCOTUS lets stand. I’m lucky, I live in the 5th Circuit and am not likely to see the sort of abominations the 4th and 9th have issued.

    It takes four Justices to take an appeal from a Circuit Court. It may be that Kennedy couldn’t be counted on to join the four somewhat conservatives, as he did for Heller and McDonald. And he couldn’t be counted on to join the four Liberals either. If Kennedy was blowing hot and cold on the issue, it is possible neither side would be willing to take a chance on which way he would vote. Gorsuch may not make enough of a difference in that case, though it could be that these 4th Circuit decisions are so far out that even Kennedy will agree to reverse.

  16. The crowd of mainly white lower middle class males had been more or less milling around , the dogmas oft repeated having tired them out, when suddely from the front doors of Congress a graying old man appeard wearing an NRA hat and as one the herd turned towards him and stood as if in military atten-tio.
    The NRA waved a sheet of papers in the air and hollered through multiple mikes, “Today the Supreme Court handed us a great victory; all air rifles of 23 caliber environmentally friendly pelet under 700 fps will be allowed to all people not under any at all of feony aand midemeanor convictions.
    The crowd began chanting, ceering and ack with high 5’s.
    The last words of NRA rep were,” You can be thankfull to the NRA that today owners of 22 caliber air rifles are still legal.”
    This is a great freedom loving nation and under GOD’s guidan e our Supreme Courts Judges have reafirmed the meaning of the 2nd Amendment.
    The.herdbten turned away and began to fill every bar within drinking distance.

  17. Are you hopeful that the Supreme Court will soon hear pending Second Amendment cases?

    No, I hope they do not hear pending 2nd Ad. cases soon. I hope they wait until Gorsuch is confirmed, if not a 4 – 4 split decision is possible and that would allow the lower court opinions to stand.

  18. I suppose we should also ban cars, cigarette lighters, chef’s knives, swords, HIV+ persons, and household bleach, based on their logic, since anyone wielding any of those is inherently “dangerous”.

  19. A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed. Our second amendment right. Please let us continue to be free.

  20. In Elizabethan England, the length of a sword (for the common folk) was restricted to a length – significantly less than that owned by the forces of the crown…

    The goal of the oppressors to “out-match” the oppressed has been around for a very long time.

    My question to the 4th Court…

    Just let us know … Why are you afraid of armed citizens?

  21. Leave our guns alone. I agree we don’t need fully automatic, but leave the rest alone. LEAVE OUR 2nd AMENDENT alone. work on the BAD guys

  22. There is no constitutional grounds to restrict private ownership of firearms built to the AR-10/AR-15 format. The direct impingement system is an evolution in firearms science that should be available to all free citizens. Piston systems are in the same category. Those who wish to neuter or strike from the constitution the 2A based on a flawed belief that only federal, state or local government should have access to technical advances in arms are at best misguided and misinformed and at worst cowards and traitors. That includes the judges of the 4th and 9th District Courts.

  23. By that reasoning any police office is armed and therefore dangerous. I shouldn’t let the in my home or near my car.

    I don’t think they’ve gone through this one enough. The extrapolations have extreme consequences.

  24. Unbelievable! Of course ALL THE BAD GUYS will immediately turn in their weapons. NOT. From the 4th District? Wow! Thought the 9th would do something like that but the 9th has Oregon, Washington,and Idaho in it’s area.

    1. Unfortunatly the states of Washington and Oregon,once red states have become strong blue states slowly depriving citizens of their rights just like Calif.
      They are now showing the Calif. political influence of the second gen. of the Calif. migration to Wash. during the 80’s when the Aerospace industry fled to Wash. due to Regulation and high taxes. You are seeing the Calif. influence of the children of the Californians that also moved there as they were employees of the aerospace co.s and the affordable housing. They are now voters and have infiltrated the school systems as teachers advocating the Calif. liberal mentality their parents took with them. They used to be great states,but no more. They have the same stench as Calif. politics.

  25. No matter what judges and courts or stupid government representatives

    say the Constitution is very clear the people have the RIGHT to keep

    and bear arms and that is not to be INFRINGED.


    1. It would be a battle of hits without an armed opponent, unless they are hypocrites, right?

  26. YES ,I think it should be protected and all rights under the 2nd should be as it was written and defined by the lateHonarable judge Scalia r.i.p. his soul.

  27. The 4th and 9th circuit do not follow the law of the land and constitution.
    They are on the liberal pay roll.
    The lower courts need a clean up.

    1. The 9th court is a sewer of liberalization and is to large to have so much influence of such a large part of the country. They should be thinned out and reduced in their numbers that their twisted decisions affect so much of the country. They are disolving the freedoms of a great country.

  28. The Constitution and ALL of the amendments were won through force of arms. By everyday Americans. The leftoiods should never fool themselves into thinking that spirt has left this country, or that it can not happen again. Patriots will put up with quite a bit, but not anything and everything that comes down the pike.

  29. I resided in Maryland, “The Free State”, from 1977 to 1981, and I grudgingly went along with the waiting periods for purchase of firearms as well as the nutty restrictions on what one could do with them. Fortunately in 1981 I received orders posting me to Fort Hood, Texas, and found just how delightful it could be to live in a truly free state. Now, having said that, back in 1981, even Texas had some silly laws dealing with firearms, but it was certainly much freer than Maryland. Now, as a permanent Texas resident I gleefully do pretty much what I wish with regard to my collection of firearms, as we move toward an even freer constitutional carry bill moving through the legislature.

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