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 AWB SCOTUS case - here we go (maybe) 
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This could be for all the marbles. And a reminder of the oh-so critical importance of that 9th SCOTUS seat that Gorsuch occupies giving the Constitutional minded folks the narrow 5-4 margin.

Lines are being drawn on big gun laws. We'll see if the SCOTUS takes up this case.

http://www.scotusblog.com/case-files/ca ... e-v-hogan/

Kolbe v. Hogan

Issues: (1) Whether District of Columbia v. Heller excludes the most popular semiautomatic rifles and magazines from Second Amendment protection; and (2) whether they may be banned even though they are typically possessed for lawful purposes, including self-defense in the home.

https://scholar.google.com/scholar_case ... i=scholarr

Quote:
In response to Newtown and other mass shootings, the duly elected members of the General Assembly of Maryland saw fit to enact the State's Firearm Safety Act of 2013 (the "FSA"), which bans the AR-15 and other military-style rifles and shotguns (referred to as "assault weapons") and detachable large-capacity magazines. The plaintiffs in these proceedings contest the constitutionality of the FSA with a pair of Second Amendment claims — one aimed at the assault weapons ban, the other at the prohibition against large-capacity magazines — plus Fourteenth Amendment equal protection and due process claims...

Pursuant to its reading of Heller, the panel majority determined that the banned assault weapons and large-capacity magazines are indeed protected by the Second Amendment, and that the FSA substantially burdens the core Second Amendment right to use arms for self-defense in the home. We thereby became the first and only court of appeals to rule that a ban on assault weapons or large-capacity magazines deserves strict scrutiny. Meanwhile, the panel affirmed the district court's denial of the plaintiffs' Fourteenth Amendment claims. On March 4, 2016, the panel's decision was vacated in its entirety by our Court's grant of rehearing en banc in this case. We heard argument en banc on May 11, 2016, and the appeal is now ripe for disposition....

As explained below, we are satisfied to affirm the district court's judgment, in large part adopting the Opinion's cogent reasoning as to why the FSA contravenes neither the Second Amendment nor the Fourteenth. We diverge from the district court on one notable point: We conclude — contrary to the now-vacated decision of our prior panel — that the banned assault weapons and large-capacity magazines are not protected by the Second Amendment. That is, we are convinced that the banned assault weapons and large-capacity magazines are among those arms that are "like" "M-16 rifles" — "weapons that are most useful in military service" — which the Heller Court singled out as being beyond the Second Amendment's reach. See 554 U.S. at 627, 128 S.Ct. 2783 (rejecting the notion that the Second Amendment safeguards "M-16 rifles and the like"). Put simply, we have no power to extend Second Amendment protection to the weapons of war that the Heller decision explicitly excluded from such coverage. Nevertheless, we also find it prudent to rule that — even if the banned assault weapons and large-capacity magazines are somehow entitled to Second Amendment protection — the district court properly subjected the FSA to intermediate scrutiny and correctly upheld it as constitutional under that standard of review....

The Second Amendment's "core protection," the Heller Court announced, is "the right of law-abiding, responsible citizens to use arms in defense of hearth and home." See 554 U.S. at 634-35, 128 S.Ct. 2783. Concomitantly, the Court emphasized that "the right secured by the Second Amendment is not unlimited," in that it is "not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose." Id. at 626, 128 S.Ct. 2783. The Court cautioned, for example, that it was not "cast[ing] doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms." Id.

Of utmost significance here, the Heller Court recognized that "another important limitation on the right to keep and carry arms" is that the right "extends only to certain types of weapons." See 554 U.S. at 623, 627, 128 S.Ct. 2783 (discussing United States v. Miller, 307 U.S. 174, 59 S.Ct. 816, 83 L.Ed. 1206 (1939)). The Court explained that "the Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes," including "short-barreled shotguns" and "machineguns." Id. at 624-25, 128 S.Ct. 2783. The Court elsewhere described "the sorts of weapons protected" as being "those in common use at the time," and observed that such "limitation is fairly supported by the historical tradition of prohibiting the carrying of dangerous and unusual weapons." Id. at 627, 128 S.Ct. 2783 (internal quotation marks omitted) (citing, inter alia, 4 Blackstone 148-49 (1769)).[9]

Continuing on, the Heller Court specified that "weapons that are most useful in military service — M-16 rifles and the like — may be banned" without infringement upon the Second Amendment right. See 554 U.S. at 627, 128 S.Ct. 2783. The Court recognized that the lack of constitutional protection for today's military weapons might inspire the argument that "the Second Amendment right is completely detached from the prefatory clause." Id. The Court explained, however, that the fit between the prefatory and operative clauses is properly measured "at the time of the Second Amendment's ratification," when "the conception of the militia ... was the body of all citizens capable of military service, who would bring the sorts of lawful weapons that they possessed at home to militia duty." Id. The fit is not measured today, when a militia may "require sophisticated arms that are highly unusual in society at large," including arms that "could be useful against modern-day bombers and tanks." Id. It was therefore immaterial to the Court's interpretation of the Second Amendment that "modern developments have limited the degree of fit between the prefatory clause and the protected right." Id. at 627-28, 128 S.Ct. 2783. And thus, there was simply no inconsistency between the Court's interpretation of the Second Amendment and its pronouncement that some of today's weapons lack constitutional protection precisely because they "are most useful in military service."...

we first ask "whether the challenged law imposes a burden on conduct falling within the scope of the Second Amendment's guarantee." See Chester, 628 F.3d at 680 (internal quotation marks omitted). If the answer is no, "then the challenged law is valid." Id. If, however, the challenged law imposes a burden on conduct protected by the Second Amendment, we next "apply[] an appropriate form of means-end scrutiny." Id. Because "Heller left open the level of scrutiny applicable to review a law that burdens conduct protected under the Second Amendment, other than to indicate that rational-basis review would not apply in this context," we must "select between strict scrutiny and intermediate scrutiny." Id. at 682. In pinpointing the applicable standard of review, we may "look[] to the First Amendment as a guide." Id. With respect to a claim made pursuant to the First or the Second Amendment, "the level of scrutiny we apply depends on the nature of the conduct being regulated and the degree to which the challenged law burdens the right." Id.

To satisfy strict scrutiny, the government must prove that the challenged law is "narrowly tailored to achieve a compelling governmental interest." See Abrams v. Johnson, 521 U.S. 74, 82, 117 S.Ct. 1925, 138 L.Ed.2d 285 (1997). Strict scrutiny is thereby "the most demanding test known to constitutional law." See City of Boerne v. Flores, 521 U.S. 507, 534, 117 S.Ct. 2157, 138 L.Ed.2d 624 (1997). The less onerous standard of intermediate scrutiny requires the government to show that the challenged law "is reasonably adapted to a substantial governmental interest." See United States v. Masciandaro, 638 F.3d 458, 471 (4th Cir. 2011); see also Chester, 628 F.3d at 683 ("[T]he government must demonstrate under the intermediate scrutiny standard that there is a reasonable fit between the challenged regulation and a substantial governmental objective." (internal quotation marks omitted)). Intermediate scrutiny does not demand that the challenged law "be the least intrusive means of achieving the relevant government objective, or that there be no burden whatsoever on the individual right in question." See Masciandaro, 638 F.3d at 474. In other words, there must be "a fit that is `reasonable, not perfect.'" See Woollard v. Gallagher, 712 F.3d 865, 878 (4th Cir. 2013) (quoting United States v. Carter, 669 F.3d 411, 417 (4th Cir. 2012)).

Until this Second Amendment challenge to the FSA's bans on assault weapons and large-capacity magazines, we have not had occasion to identify the standard of review applicable to a law that bars law-abiding citizens from possessing arms in their homes. In Masciandaro, we "assume[d] that any law that would burden the `fundamental,' core right of self-defense in the home by a law-abiding citizen would be subject to strict scrutiny." See 638 F.3d at 470. Thereafter, in Woollard, we noted that Masciandaro had "`assume[d]'" any inside-the-home regulation would be subject to strict scrutiny, and we described the plaintiff's related — and unsuccessful — contention that "the right to arm oneself in public [is] on equal footing with the right to arm oneself at home, necessitating that we apply strict scrutiny in our review of [an outside-the-home regulation]." See Woollard, 712 F.3d at 876, 878 (4th Cir. 2013) (quoting Masciandaro, 638 F.3d at 470). Notably, however, neither Masciandaro nor Woollard purported to, or had reason to, decide whether strict scrutiny always, or even ever, applies to laws burdening 134*134 the right of self-defense in the home. See also, e.g., United States v. Hosford, 843 F.3d 161, 168 (4th Cir. 2016) (declining to apply strict scrutiny to a firearms prohibition that "addresses only conduct occurring outside the home," without deciding if or when strict scrutiny applies to a law reaching inside the home)....

the district court elected to assume that the banned assault weapons and large-capacity magazines are constitutionally protected, and thus that the FSA "places some burden on the Second Amendment right."...

he district court relied in part on the 2011 decision of the District of Columbia Circuit in Heller II. The Heller II court assumed that the District's prohibitions against military-style assault rifles and large-capacity magazines impinge upon the Second Amendment right and then upheld the bans under the intermediate scrutiny standard....

We could resolve the Second Amendment aspects of this appeal by adopting the district court's sound analysis and thereby follow the lead of our distinguished colleagues on the Second and District of Columbia Circuits. That is, we could simply assume that the assault weapons and large-capacity magazines outlawed in Maryland are protected by the Second Amendment and then deem the FSA constitutional under the intermediate scrutiny standard of review. It is more appropriate, however, in light of the dissent's view that such constitutional protection exists, that we first acknowledge what the Supreme Court's Heller decision makes clear: Because the banned assault weapons and large-capacity magazines are "like" "M-16 rifles" — "weapons that are most useful in military service" — they are among those arms that the Second Amendment does not shield. ...

On the issue of whether the banned assault weapons and large-capacity magazines are protected by the Second Amendment, the Heller decision raises various questions. Those include: How many assault weapons and large-capacity magazines must there be to consider them "in common use at the time"? In resolving that issue, should we focus on how many assault weapons and large-capacity magazines are owned; or on how many owners there are; or on how many of the weapons and magazines are merely in circulation? Do we count the weapons and magazines in Maryland only, or in all of the United States? Is being "in common use at the time" coextensive with being "typically 136*136 possessed by law-abiding citizens for lawful purposes"? Must the assault weapons and large-capacity magazines be possessed for any "lawful purpose[]" or, more particularly and importantly, the "protection of one's home and family"? Is not being "in common use at the time" the same as being "dangerous and unusual"? Is the standard "dangerous and unusual," or is it actually "dangerous or unusual"....

Thankfully, however, we need not answer all those difficult questions today, because Heller also presents us with a dispositive and relatively easy inquiry: Are the banned assault weapons and large-capacity magazines "like" "M-16 rifles," i.e., "weapons that are most useful in military service," and thus outside the ambit of the Second Amendment? See 554 U.S. at 627, 128 S.Ct. 2783. The answer to that dispositive and relatively easy inquiry is plainly in the affirmative....

Whatever their other potential uses — including self-defense — the AR-15, other assault weapons, and large-capacity magazines prohibited by the FSA are unquestionably most useful in military service. That is, the banned assault weapons are designed to "kill[] or disabl[e] the enemy" on the battlefield. See J.A. 735. The very features that qualify a firearm as a banned assault weapon — such as flash suppressors, barrel shrouds, folding and telescoping stocks, pistol grips, grenade launchers, night sights, and the ability to accept bayonets and large-capacity magazines — "serve specific, combat-functional ends." See id. at 1120. And, "[t]he net effect of these military combat features is a capability for lethality — more wounds, more serious, in more victims — far beyond that of other firearms in general, including other semiautomatic guns." Id. at 1121-22.

Likewise, the banned large-capacity magazines "are particularly designed and most suitable for military and law enforcement applications." See J.A. 891 (noting that large-capacity magazines are meant to "provide[] soldiers with a large ammunition supply and the ability to reload rapidly"). Large-capacity magazines enable a shooter to hit "multiple human targets very rapidly"; "contribute to the unique function of any assault weapon to deliver extraordinary firepower"; and are a "uniquely military feature[]" of both the banned assault weapons and other firearms to which they may be attached. ...

Because the banned assault weapons and large-capacity magazines are clearly most useful in military service, we are compelled by Heller to recognize that those weapons and magazines are not constitutionally protected. On that basis, we affirm the district court's award of summary judgment in favor of the State with respect to the plaintiffs' Second Amendment claims...

In contrast, there is scant evidence in the record before us that the FSA-banned assault weapons and large-capacity magazines are possessed, or even suitable, for self-protection...


Our ruling on Second Amendment protection is limited and clear: Because the FSA-banned assault weapons and large-capacity magazines are like M16s, in that they are most useful in military service, they are not protected by the Second Amendment. ... We also take notice of the scant evidence in the record that the banned assault weapons and large-capacity magazines are possessed or suitable for self-protection....

Ultimately, the dissent would leave it to individual citizens — and disempower legislators — to determine whether a weapon may be possessed for self-defense. ...

Affirmed.




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Thu Nov 09, 2017 6:50 pm
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leadcounsel wrote:
This could be for all the marbles. And a reminder of the oh-so critical importance of that 9th SCOTUS seat that Gorsuch occupies giving the Constitutional minded folks the narrow 5-4 margin.

Lines are being drawn on big gun laws. We'll see if the SCOTUS takes up this case.

http://www.scotusblog.com/case-files/ca ... e-v-hogan/

Kolbe v. Hogan

Issues: (1) Whether District of Columbia v. Heller excludes the most popular semiautomatic rifles and magazines from Second Amendment protection; and (2) whether they may be banned even though they are typically possessed for lawful purposes, including self-defense in the home.

https://scholar.google.com/scholar_case ... i=scholarr

Quote:
...
Because the banned assault weapons and large-capacity magazines are clearly most useful in military service, we are compelled by Heller to recognize that those weapons and magazines are not constitutionally protected. On that basis, we affirm the district court's award of summary judgment in favor of the State with respect to the plaintiffs' Second Amendment claims...


The bold portion would make the founding fathers laugh hysterically right before they grabbed their guns and marched down to the local politician's office to tell them what a fuck-nutted pile of horseshit their interpretation of the Constitution is.

Seriously.

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Thu Nov 09, 2017 7:17 pm
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The liberal mind is so illogical.

Liberal logic.

Short barreled shotguns are illegal because they have no military usefulness.
AR15s are illegal because they are too useful for the military and serve no civilian home defense purpose.
High capacity magazines serve no civilian home defense purpose.
Various illegal rifles are illegal because they have no "sporting" purpose and are too useful for the military.
Handguns are legal because they are useful for home defense and are common.
AR15s were illegal because they were uncommon, but now that they are legal and common that is not a determinant reason to keep them legal.
Fully auto and semi-auto are the "same rate of fire."
And they don't even appreciate that most guns are semi-auto in some form and of little difference than an AR, and many are more lethal than an AR.

They clearly don't even understand the 2A has nothing to do with sporting, hunting, or really even home defense by the way.

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Thu Nov 09, 2017 10:26 pm
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Is it time to start meeting at taverns yet?


Thu Nov 09, 2017 11:15 pm
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they want to get rid of guns. period.
that's why they use all the illogical logical logic they can in order to push their agenda. they will do anything and everything to get what they want. there's no such thing as a progressive who is okay with any type of gun. they will lie, cheat, steal, and pander to make this world a "better place".


Thu Nov 09, 2017 11:18 pm
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Heller came to the overall mostly right conclusion on the MAIN point. Individual right.

Problem is that it didn't go far enough and it's apparent to any gun owner that it was a compromise by non-gun owners or those uneducated about the operation of a gun.

A Ruger 10/22 does the same thing as an AR15, as we all know. A semi-auto 12 gauge Remington 1187 is as dangerous or more. The Heller court is just quite scared of anything that looks like it might be more dangerous.

But as we all know, a 12 gauge firing buck shot is just as lethal. A commonly available deer rifle is extremely dangerous. And a pistol is extremely dangerous. Ironically, these are all used routinely in military applications as well. Our unit had bolt action rifles, pistols, and shotguns, albeit in less numbers.

The liberals are so transparent in that they will use and adopt any inconsistent flavor of any argument that leads to a ban on any particular gun or part.

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Fri Nov 10, 2017 8:47 am
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What's changed? Only went to conference ... did SCOTUS grant or deny cert?

One would think with 3 circuit courts all with different opinions SCOTUS is obligated to take this and set things square one way or the other.

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Fri Nov 10, 2017 7:09 pm
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I have not been following this case to be honest. But I do find it funny how three panel judges keep ruling in favor of gun owners and then suddenly it goes En Banc to over turned that three panel judges ruling.


Fri Nov 10, 2017 7:14 pm
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Thanks for posting this. I'll keep an eye on it.

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If you vote for Biden you are voting to be murdered when he sends Beto to come take your "semi automatic assault weapon" (any semi auto).
If you have family or friends voting for Biden show them this and ask if they are willing to vote for your murder or maybe even their own if they are gun owners or live with any.
https://nypost.com/2020/03/03/joe-biden ... n-control/
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“I want to make something clear, I’m going to guarantee you this is not the last you’ve seen of him (Beto),” Biden said Monday evening during a campaign rally in Dallas. “You’re (Beto) going to take care of the gun problem with me. You’re (Beto) going to be the one who leads this effort.”

https://www.newsweek.com/beto-orourke-g ... ns-1465738
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[Beto O'Rourke Suggests Police Would 'Visit' Homes To Implement Proposed Assault Weapons Ban] "In that case, I think that there would be a visit by law enforcement to recover that firearm... ..."If someone does not turn in an AR-15 or an AK-47, one of these weapons of war...then that weapon will be taken from them"


Sat Nov 11, 2017 6:49 am
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What kind of impact could the ruling, in our favor, with the Wa assault weapon registration scheme?


Sat Nov 11, 2017 3:38 pm
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If SCOTUS rules AR style and the like along with magazines or any and all sizes fall within the "common use" and self defense rubric of Heller all bans are dead.

Of course they will phrase it in a narrow twisted way that will make a contortionist jealous.

Presuming circuit courts obey - which they haven't been. They are due for a smack down.

Also would be nice if SCOTUS points out through McDonald this is also incorporated against the states - the howls from CS, MD, NY will register in seismographs across the globe.

One can hope ...

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Sat Nov 11, 2017 4:57 pm
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And relisted for the 21st. Can kicked down road. Probably get relisted yet again.

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Tue Nov 14, 2017 2:46 pm
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DSynger wrote:
What kind of impact could the ruling, in our favor, with the Wa assault weapon registration scheme?


The next SCOTUS AWB case is almost certainly winner-takes-all.

A ruling would almost certainly put clearly defined limits, whatever they are, on what civilians individually can own. Designs, sizes, shapes, magazine capacity, cosmetic features, etc. maybe even full auto.

I would expect an intellectually honest and Constitutional abiding SCOTUS determine with no uncertain terms that the 2A:
* Evolves and will keep up with technology
* Applies regardless of how rare or unusual a personal weapon may be (duh, otherwise that stifles innovation, because at some point there are only a few of a new design, even the Colt Peacemaker started as just a few...).
* Includes any common firearm a Soldier might carry into a battle.

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Tue Nov 14, 2017 7:26 pm
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Cert denied with no commentary.

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Mon Nov 27, 2017 8:47 am
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SporkBoy wrote:
Cert denied with no commentary.


Cert denied in Kolbe, so the Court won't be hearing it for now.
http://www.scotusblog.com/

Momentarily frustrating, but I'm okay with that for now. The future looks VERY bright for the 2A as the Court (and Federal Courts) will almost certainly swing right in the next 3-7 years. SCOTUS is a narrow 5-4 now, but in a few years may be 7-2 Constitutional. A 5-4 ruling now may be luke warm language but in 2 years it might be crushingly awesome language that is sweepingly in favor of gun rights.

The problem with Heller was it was so narrow and therefore didn't go far enough and left a lot of these questions open - such as incorporation (later cleaned up by McDonald v. Chicago), "assault rifles," (because they lack actual gun knowledge), and so forth. It was a big win, but was not decisive enough since we continue to have these fights over what should be well settled - "high capacity magazines" and cosmetic features and so forth.

So, as of now, the remedy is to pick a neutered class of weapon or move to a better state. Poor options, but better than no options if it was affirmed or a poor decision sets more frustrating lack of answers. I suspect in a few years with a Constitutional Court and better Federal Courts we will have far more positive answers.

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Mon Nov 27, 2017 11:12 am
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