Fourth Circuit: Ban The ARs!

The Supreme Court generally does not grant cert for cases unless they represent major constitutional issues, and until they are “ripe.”  That usually means there is a clear split in opinion between federal circuit courts.  Bianchi v Brown—full decision with conferences and dissents available here–a case about Maryland’s AR-15 ban, has set up such a split.  Heller, McDonald and Bruen  have made clear common and usual guns are presumptively constitutionally protected, but various lower courts continue to spit in the Supreme Court’s collective faces over Second Amendment Issues.  Many leftist judges have grudgingly, and at least partially, ruled in favor or the Second Amendment, and they’ve noted their discomfort at having to follow the Constitution in their decisions.

A Colt AR-15 variant with accessories

This case may provide sufficient controversy for the court to grant cert and finally decide whether America’s most popular—common and usual—rifle, the AR-15 family, is constitutional.  It’s certainly long past time for the Court to more fully define the boundaries of the Second Amendment.  In the meantime, allow me please, gentle readers, to examine the 4^thCircuit’s reasoning:

We have described the AR-15’s capacities in abundant detail to demonstrate just how far outside the animating purposes of the Second Amendment this weapon lies. While we know that the AR-15 thrives in combat, mass murder, and overpowering police, appellants have failed to demonstrate that the weapon is suitable for self-defense. This is likely because such a showing would be difficult to make. Indeed, many of the weapon’s combat-functional features make it ill-suited for the vast majority of self-defense situations in which civilians find themselves.

Good Lord.  It would be difficult to imagine a less-informed, more stubbornly leftist pronouncement.  The semiautomatic AR-15 variants at issue are not “combat” arms, unlike the select-fire and look-alike, M4.  Any failure in demonstrating AR-15s, or any semiautomatic rifle, are suitable for self-defense is certainly because it’s self-evidently true, and those defending the Second Amendment didn’t imagine the court would be so purposefully dense.  That the court uses such emotional terms as “combat, mass murder, and overpowering police” clearly indicates their intention to ignore fact and impose a political philosophy on the Constitution.

I’ve no idea what “combat-functional” features means–the gun shoots?–but the Court clearly implies they are somehow bad and beyond the Constitutional pale.  In reality, AR-pattern rifles are accurate, light weight, ergonomically excellent, and may be employed against multiple attackers, but this is largely true of revolvers, semiautomatic handguns, lever action rifles, pump and semiautomatic shotguns, and virtually every other semiautomatic rifle.

Those who understand guns and tactics know AR-15s are well suited to self-defense situations.

To wit: the heightened firepower of AR-15s ‘pose(s) a serious risk of ‘overpenetration’—that is, (bullets) passing through their intended target and impacting a point beyond it.’ For example, AR-15 rounds ‘can pass through most construction materials, even at ranges of 350 yards,’ thereby threatening the lives of ‘bystanders, family members, or other innocent persons well outside the intended target area.’ (‘(R)ounds from assault weapons have the ability to easily penetrate most materials used in standard home construction, car doors, and similar materials.’). Overpenetration poses a grave risk in the home—’where the need for defense of self, family, and property is most acute,’ because firing an AR-15 in close quarters will often put the safety of cohabitants and neighbors in jeopardy.

“Heightened firepower?”  With few exceptions, ARs fire the .223/5.56 NATO cartridge, a cartridge of intermediate power.  By the Court’s formulation, virtually every rifle cartridge, and not a few handgun cartridges, “poses a serious risk of overpenetration.”  The issue of overpenetration is a matter of cartridge and bullet design and physics, and is in no means unique to the AR-15 or its cartridge.

The large magazines that are integral to the AR-15’s effectiveness in combat and mass murder are also ill-suited for typical self-defense scenarios. As the First Circuit has noted, ‘civilian self-defense rarely—if ever—calls for the rapid and uninterrupted discharge of many shots.’ Indeed, ‘most homeowners only use two to three rounds of ammunition in self-defense,’ with one study finding that when citizens fire shots in self-defense, they fire an average of two shots and, 97% of the time, fire five shots or fewer.

Here too the Majority exposes its anti-Second Amendment intentions.  While it’s true relatively few rounds are usually fired in self-defense situations, it’s equally true no one can know how many attackers they’ll be facing.  Recently, criminal gangs from South and Central America have been committing hot, armed burglaries in border states and elsewhere, always with multiple criminals.  There are many cases on record, including recently, of citizens using ARs, and other weapons with substantial magazine capacity to save their lives and drive off multiple attackers.

In Bruen the Supreme Court made clear limitations on the Second Amendment must be based in the history of the time the Second Amendment was adopted.  The Founders would have been delighted to have AR-15s, and more so their M4 cousins.  They were content that every American have the most effective military weapons of their day, including cannon.  If 30 round magazines and semiautomatic actions were available, they would have embraced them.  The principles of liberty and self-defense do not change with technology.

By the Court’s lights, why should anyone be allowed a magazine of more than five rounds?  Oh, and “firepower” is a military term not correctly applied to individual rifles.

The AR-15 also does not have any of the advantages that the Supreme Court identified in Heller as establishing the handgun as the ‘quintessential self-defense weapon . . . for home defense.’ Compared to a handgun, the AR-15 is heavier, longer, harder to maneuver in tight quarters, less readily accessible in an emergency, and more difficult to operate with one hand.

Again, the Court displays its willful, perhaps feigned, ignorance.  We carry handguns because it is indeed difficult to carry rifles, but no one but the grossly uninformed would carry less than a rifle if they knew they were heading into a gun fight.  For home defense, an AR is no less handy than a handgun, unless one carries a handgun on their person in the home, which few do.  Most, however, have handguns, shotguns, or rifles close at hand.  And of course, the Second Amendment is not limited to home defense.

If the court were truly concerned about overpenetration, they should be highly concerned about accuracy, and ARs are far easier to shoot accurately at virtually any distance than any handgun.

Outside the home, the AR-15 has even less utility for self-defense. It is significantly less concealable than a handgun and much more difficult to carry while conducting daily activities. When shot in cities, towns, or other densely populated areas where armed confrontations most often occur, the AR-15 presents at least as great a risk as it does in the home of harming innocent bystanders due to overpenetration. Moreover, public carry of an AR-15 in modern-day America may well “spread() ‘fear’ or ‘terror’ among the people” due to its frequent and devastating use in mass shootings of innocent civilians— an effect that our common-law tradition has long regarded as incompatible with lawful carry for self-defense.

The Court’ majority continues to expose its lack of information, or its willingness to deceive.  Of course any long gun is more difficult to conceal than most handguns, but that’s not justification for banning long guns, nor does it make them inappropriate for self-defense.  Properly placed .223 rounds do not tend to overpenetrate.  In fact, light .223 bullets tend to fragment when they strike anything hard, which one would expect of a light bullet from an intermediate cartridge.

In sum, the AR-15—with its military origination, combat-functional features, and extraordinary lethality—has ‘the same basic characteristics, functionality, capabilities, and potential for injury as the M-16.’ And its all too frequent use in terrorism, mass killing, and police murder shows that the AR-15 offers firepower ill-suited and disproportionate to fulfilling the Second Amendment’s purpose of armed self-defense. Therefore, just like the M16, the AR-15 is ‘most useful in military service’ and ‘may be banned’ consistent with the Second Amendment. (cites omitted)

Wow.  The AR-15 has been on the civilian market since 1963, and while Armalite, the company that developed it—thus not “assault rifle,” but “Armalite rifle”—certainly hoped to market it to the military, they were slow in adopting it.  It was first adopted by the Air Force for base defense, and only later by our other armed forces.

Nor is the AR-15 possessed of “extraordinary lethality,” and because it is not capable of burst or fully automatic fire, does not have the same “potential for injury as the M-16.”  In fact, the 5.56 NATO cartridge has long been recognized as lacking in stopping power, which is why our military is currently trying to develop a larger and more powerful cartridge, which would require a heavier rifle with magazines of only 20 round capacity.

The Majority does not explain why if the rifle is “ill-suited and disproportionate to fulfilling the Second Amendment’s purpose of armed self-defense,” police agencies across the nation are adopting it for daily carry by patrol officers.

The last sentence is telling.  The AR-15 is not “most useful in military service,” which is why our military has adopted the M4.

Final Thoughts:  The majority’s opinion was apparently largely influenced, indeed, copied, from common anti-liberty/gun screeds.  It relies on emotion and contrived outrage rather than Constitutional analysis, and what analysis it attempts is warped to fit the anti-liberty/gun narrative.  It argues that because ARs have been used in crimes, they should therefore be banned.  It purposely distorts not only the historical, constitutional record, but the Bruen opinion and the Supreme Court’s intent.  By all means, take the link and read the dissent, which is everything the majority opinion is not.

This case would, if the Supreme Court is willing, be a suitable vehicle for putting to rest these specious, un-constitutional arguments.  Clearly, this 4^th Circuit Majority hopes, by banning any class of common, usual firearm, to establish a precedent that will allow the banning of all.  The current Supreme Court majority surely understands this, as it understands the forces of the Left would abolish the Second Amendment through court packing or other means if they could.  Better to get a sane, historically based ruling on the record as soon as possible.