The NRA will be freaking out about this Fourth Circuit Court decision essentially ruling that military-use assault rifles are not protected by the Second Amendment.  This is a major reversal of a long sequence of fortune for the more extreme wing of gun rights advocacy, and it could be overturned by SCOTUS.  But it may not be.

However, there is a silver lining for NRA types as this could put to rest all hint of any influence of the “well regulated militia” qualification to the Second Amendment.  Under prior decisions, the Courts have ruled that sawed-off shotguns and switchblades could be banned on the basis that the weapons served no practical purpose for a militia.  Arguably, under that reasoning, the protection of rights to own an AK-47 should have been stronger than that for handguns or hunting rifles.   More recently, SCOTUS overturned that line of cases in affirming the Second Amendment protection of nunchuks – also with very little practical application for a militia, but, the Court deemed, relevant to the basic right of self-defense which is deemed fundamental even though not explicitly stated in the Constitution (when strict constructionists and original intenters become Constitutional liberals, you know it’s about a right to guns or prayer).  So, having trashed the whole is-it-relevant-to-a-militia analysis process, the question is now whether it’s relevant to personal self-defense.


So as of now, if this decision stands, the process is returned to the realm of democratic processes and elected officials don’t have the cover they once had.  They face the most formidable lobby in Washington in the NRA, but they also face a growing fatigue of multiple shootings blamed on everything but mass death weapons.  From the decision:

Disenfranchising the American people on this life and death subject would be the gravest and most serious of steps. It is their community, not ours. It is their safety, not ours. It is their lives, not ours. To say in the wake of so many mass shootings in so many localities across this country that the people themselves are now to be rendered newly powerless, that all they can do is stand by and watch as federal courts design their destiny—this would deliver a body blow to democracy as we have known it since the very founding of this nation.

In urging us to strike this legislation, appellants would impair the ability of government to act prophylactically. More and more under appellants’ view, preventive statutory action is to be judicially forbidden and we must bide our time until another tragedy is inflicted or irretrievable human damage has once more been done. Leaving the question of assault weapons bans to legislative competence preserves the latitude that representative governments enjoy in responding to changes in facts on the ground. Constitutionalizing this critical issue will place it in a freeze frame which only the Supreme Court itself could alter. The choice is ultimately one of flexibility versus rigidity, and beyond that, of whether conduct that has visited such communal bereavement across America will be left to the communal processes of democracy for resolution.


I wonder if Justice Kennedy will moderate on these issues in the face of a one party rule over all three branches of government.