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.
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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.”
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.
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?
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.”).
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.
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.