Supreme Court Again Ducks Second Amendment by Refusing to Hear Gun Cases

When it comes to the Second Amendment, their hands are on the other side. Why? (Franz Jantzen, Collection of the Supreme Court of the United States)

“The Supreme Court turned away an appeal from Maryland gun owners who challenged the state’s ban on assault weapons, which were used in recent mass shootings in a south Texas church and at an outdoor concert in Las Vegas,” the Associated Press reported Monday. “The justices left in place a federal appeals court ruling that upheld the Maryland law that does not permit the sale of a range of semi-automatic weapons and large-capacity magazines.”

That was not the only case the court turned away.

“Perhaps the most noteworthy denials came in two cases involving gun rights: Kolbe v. Hogan, a challenge to Maryland’s ban on semi-automatic rifles and large-capacity magazines, passed in the wake of the mass shooting at a Connecticut elementary school; and Norman v. Florida, a challenge to the state’s ban on the open carrying of guns in public,” SCOTUS Blog explained. “In both cases, the lower courts had upheld the states’ bans, so today’s rulings leave those decisions in place.”

The denials came with no comments from the justices. One prominent oath-breaking gun-grabber in particular was happy to provide one which the media was happy to repeat.

“It ought to be a lesson to all states, and I would hope that they would look at the 4th Circuit’s decision and the tragic events around the country and come to the conclusion that this is a common-sense law,” Maryland’s Democrat Attorney General Brian Frosh crowed. And that decision in a nutshell?

“[W]e have not power to extend Second Amendment protections to weapons of war,” Bill Clinton nominee and 4th Circuit Court of Appeals Judge Robert King wrote.

Weapons of war are precisely what “We the People” are entitled to have. That’s why the militia was deemed “necessary to the security of a free State” by the Founders. And King wouldn’t have needed to extend anything. U.S. v Miller, a case from 1939 already observed a weapon would have “some reasonable relationship to the preservation or efficiency of a well regulated militia [or] that this weapon is any part of the ordinary military equipment, or that its use could contribute to the common defense.”

As for the Florida case, falling back on the manner of bearing arms (openly vs. concealed) as an excuse to tolerate infringements flies in the face of both historical customs as well as the “shall not be infringed” proscription. That seems to be a pretty clear mandate to everyone except to those who would deny rights to their countrymen under color of authority.

The absence of further High Court action since 2010 and the lack of any explanation for declining to hear these cases mean we can only speculate on the reasons. Are judges who favor easing up on infringements waiting for a retirement or two from their ranks before they’ll deem it safe to move forward, or does this mean the majority owes its first and foremost loyalties to an establishment that thinks this business of an armed populace has gone far enough?

In either case, infringements with the force of law behind them are being allowed to continue now, and as Dr. King observed, a right delayed is a right denied.

Earlier recent examples of SCOTUS 2A avoidance:

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David Codrea’s opinions are his own. See “Who speaks for Oath Keepers?”

About Author

David Codrea

David Codrea blogs at The War on Guns: Notes from the Resistance (WarOnGuns.com), and is a field editor/columnist for GUNS Magazine. Named “Journalist of the Year” in 2011 by the Second Amendment Foundation for his groundbreaking work on the “Fast and Furious” ATF “gunwalking” scandal, he is a frequent event speaker and guest on national radio and television programs.

Comments

  1. Asst. Admin 27 November, 2017, 17:32

    Judges as the ultimate arbiters of all constitutional questions would place us under the despotism of an oligarchy. ~ Thomas Jefferson

    You seem … to consider the judges as the ultimate arbiters of all constitutional questions; a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy.

    Our judges are as honest as other men, and not more so. They have, with others, the same passions for party, for power, and the privilege of their corps. Their maxim is “boni judicis est ampliare jurisdictionem,” and their power the more dangerous as they are in office for life, and not responsible, as the other functionaries are, to the elective control.

    The Constitution has erected no such single tribunal, knowing that to whatever hands confided, with the corruptions of time and party, its members would become despots.

    It has more wisely made all the departments co-equal and co-sovereign within themselves.

    If the legislature fails to pass laws for a census, for paying the judges and other officers of government, for establishing a militia, for naturalization as prescribed by the Constitution, or if they fail to meet in congress, the judges cannot issue their mandamus to them ; if the President fails to supply the place of a judge, to appoint other civil or military officers, to issue requisite commissions, the judges cannot force him. …

    The Constitution, in keeping three departments distinct and independent, restrains the authority of the judges to judiciary organs, as it does the executive and legislative to executive and legislative organs.

    Thomas Jefferson, Letter to William Charles Jarvis, (28 September 1820).

    Reply this comment
    • Nick 29 November, 2017, 09:25

      Jefferson, along with many who opposed the Constitution as it was written, distrusted the court. I would say he had serious contempt for them.
      I believe it was Robert Yates, writing as Brutus, that the justices would centralize power to the government with essentially no one to hold them in check. They would be superior to the representatives of the people.
      How prophetic were those who we labeled as Anti-Federalists?

      Reply this comment
  2. WGP 27 November, 2017, 18:56

    It’s the NRA in black robes….only worse.

    Reply this comment
  3. Swamped~Fi 28 November, 2017, 08:04

    Molan Labe, I will NEVER comply, and what’s worse, when the American people have decided they have had enough, it is exactly the second amendment that will be needed to turn these despots back to the shadows that they came from

    Reply this comment
    • Vinny 5 December, 2017, 16:03

      Swamped- Fi…….Bulls eye dead center……Molon Labe….and we are at that threshold as we speak !!

      Reply this comment
  4. Berlin Veteran 28 November, 2017, 10:15

    Let’s look at what the US Constitution has to say about it. Specifically the 2nd Amendment. “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.” Here are some quotes from the founding fathers on the meaning and importance of the 2nd Amendment.
    The Founding Fathers on the Second Amendment
    “I ask, Sir, what is the militia? It is the whole people. To disarm the people is the best and most effectual way to enslave them.”
    George Mason
    Co-author of the Second Amendment
    during Virginia’s Convention to Ratify the Constitution, 1788

    “A militia, when properly formed, are in fact the people themselves …”
    Richard Henry Lee
    writing in Letters from the Federal Farmer to the Republic, Letter XVIII, May, 1788.

    “The people are not to be disarmed of their weapons. They are left in full posession of them.”
    Zachariah Johnson
    Elliot’s Debates, vol. 3 “The Debates in the Several State Conventions on the Adoption of the Federal Constitution.”

    “… the people are confirmed by the next article in their right to keep and bear their private arms”
    Philadelphia Federal Gazette
    June 18, 1789, Pg. 2, Col. 2
    Article on the Bill of Rights

    “And that the said Constitution be never construed to authorize Congress to infringe the just liberty of the Press, or the rights of Conscience; or to prevent the people of the United States, who are peaceable citizens, from keeping their own arms; …”
    Samuel Adams
    quoted in the Philadelphia Independent Gazetteer, August 20, 1789, “Propositions submitted to the Convention of this State”

    The Founding Fathers on Arms
    “Firearms stand next in importance to the constitution itself. They are the American people’s liberty teeth and keystone under independence … from the hour the Pilgrims landed to the present day, events, occurrences and tendencies prove that to ensure peace security and happiness, the rifle and pistol are equally indispensable … the very atmosphere of firearms anywhere restrains evil interference — they deserve a place of honor with all that’s good.”
    George Washington
    First President of the United States

    “The supposed quietude of a good man allures the ruffian; while on the other hand arms, like laws, discourage and keep the invader and plunderer in awe, and preserve order in the world as property. The same balance would be preserved were all the world destitute of arms, for all would be alike; but since some will not, others dare not lay them aside … Horrid mischief would ensue were the law-abiding deprived of the use of them.”
    Thomas Paine

    “To preserve liberty, it is essential that the whole body of the people always possess arms and be taught alike, especially when young, how to use them.”
    Richard Henry Lee
    American Statesman, 1788

    “The great object is that every man be armed.” and “Everyone who is able may have a gun.”
    Patrick Henry
    American Patriot

    “Are we at last brought to such humiliating and debasing degradation, that we cannot be trusted with arms for our defense? Where is the difference between having our arms in possession and under our direction and having them under the management of Congress? If our defense be the real object of having those arms, in whose hands can they be trusted with more propriety, or equal safety to us, as in our own hands?”
    Patrick Henry
    American Patriot

    “Those who hammer their guns into plowshares will plow for those who do not.”
    Thomas Jefferson
    Third President of the United States

    “The constitutions of most of our States assert that all power is inherent in the people; that … it is their right and duty to be at all times armed; … ”
    Thomas Jefferson
    letter to Justice John Cartwright, June 5, 1824. ME 16:45.

    “The best we can help for concerning the people at large is that they be properly armed.”
    Alexander Hamilton
    The Federalist Papers at 184-8

    The Founding Fathers on Maintaining Freedom
    “The greatest danger to American freedom is a government that ignores the Constitution.”
    Thomas Jefferson
    Third President of the United States

    “There are men in all ages who mean to govern well, but they mean to govern. They promise to be good masters, but they mean to be masters. ”
    Noah Webster
    American Lexicographer

    “The people never give up their liberties but under some delusion.”
    Edmund Burke
    British Statesman, 1784

    “What country can preserve its liberties if their rulers are not warned from time to time that their people preserve the spirit of resistance. Let them take arms.”
    Thomas Jefferson
    to James Madison

    “They that give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety.”
    Ben Franklin
    American Statesman

    Reply this comment
    • Charlie BROWN 28 November, 2017, 18:53

      Berlin Vet, The Lady of Liberty that has been given by the French, has become a Trojan Horse. CB 2017.
      Wink and regards CB.

      Reply this comment
  5. G. Giant 28 November, 2017, 10:34

    Can there be any doubt now. The entire court seems to have been taken over by NEW WORLD ORDER. Not even a comment about why they will not defend the 2nd Amendment.
    Folks, they have declared WAR on us. When will we acknowledge it?

    Reply this comment
  6. OlGreyWolf 28 November, 2017, 11:09

    The supreme Court was right for this…It is, after all, States Rights.

    Reply this comment
    • Colt45 28 November, 2017, 11:25

      The problem with gun control laws is it only affects law abiding citizens. So I’m asking any gun grabbing person. How would you get the guns out of the hands from criminals and gang bangers?

      Reply this comment
    • Bisley 28 November, 2017, 12:35

      The states have no right that supersedes the Constitution’s guarantee of the people’s right to arms.

      Reply this comment
    • Cal 28 November, 2017, 13:27

      Actually, these natural rights of the people were also not delegated to the states any more then to the general (federal) government. The people retained them for themselves (reiterated within the 10th Amendment so that it would not be forgotten that the PEOPLE did not delegate everything to governments) because the framers knew that one thing can be counted on within governments, the people who want to be in them are usually easily corruptable.

      Tench Coxe: “Who are the militia? are they not ourselves. Is it feared, then, that we shall turn our arms each man against his own bosom. Congress have no power to disarm the militia. THEIR SWORDS, AND EVERY OTHER TERRIBLE IMPLEMENT OF THE SOLDIER, ARE THE BIRTH-RIGHT OF AN AMERICAN… THE UNLIMITED POWER OF THE SWORD IS NOT IN THE HANDS OF EITHER THE FEDERAL OR STATE GOVERNMENTS BUT, where I trust in God it will ever remain, IN THE HANDS OF THE PEOPLE.” (Delegate to the Constitutional Convention of 1787) (caps are mine for emphasis)

      Richard Henry Lee: “Whereas, to preserve liberty, it is essential that the whole body of the people always possess arms, and be taught alike, especially when young, how to use them; nor does it follow from this, that all promiscuously must go into actual service on every occasion. The mind that aims at a select militia, must be influenced by a truly anti-republican principle; and when we see many men disposed to practice upon it, whenever they can prevail, no wonder true republicans are for carefully guarding against it.” (Initiator of the Declaration of Independence, and member of the first Senate, which passed the Bill of Rights)

      George Washington: “It may be laid down, as a primary position, and the basis of our system, that every citizen who enjoys the protection of a free government…, but even of his personal services to the defence of it, and consequently that the Citizens of America (with a few legal and official exceptions) from 18 to 50 Years of Age should be borne on the Militia Rolls, provided with uniform Arms, and so far accustomed to the use of them, that the Total strength of the Country might be called forth at Short Notice on any very interesting Emergency.” (“Sentiments on a Peace Establishment”, letter to Alexander Hamilton; “The Writings of George Washington”)

      As you can see by the words of those that were involved in the actual creation of our governments that it is a natural right of the people that is REQUIRED to be protected by those that serve within our governments. That it is also a constitutional requirement that the people of THIS nation are armed, trained in the use of military weapons. But if still doubtful go watch that movie about Athens, Tennessee, where a corrupt “law enforcement, etc) were stealing votes. Notice that they (veterans) went to the local Militas armory to get the weapons needed for those who were not carrying. [https://www.youtube.com/watch?v=U5ut6yPrObw The Battle of Athens was an armed rebellion led by WWII veterans and citizens in Athens and Etowah, Tennessee, United States, against the tyrannical local government in August 1946]

      Reply this comment
  7. SheepDog 28 November, 2017, 11:21

    To depend on the courts to uphold the 2A as it is [plainly] written, is a fool’s errand. That will never happen. In the end it will require ‘We the people’ taking direct action to defend it. Assuming of course, there is enough interest…..which so far there hasn’t been…..

    Reply this comment
  8. Colt45 28 November, 2017, 11:23

    The problem with gun control laws is it only affects law abiding citizens. So I’m asking any gun grabbing person. How would you get the guns out of the hands from criminals and gang bangers?

    Reply this comment
  9. ricarrdo estavans 28 November, 2017, 11:25

    The second amendments protects all the others.

    Reply this comment
  10. ricarrdo estavans 28 November, 2017, 11:29

    So slavery is a states right, free speech is a states right, freedom of religion is a states right. Anything NOT in the US CONSTITUTION is a state. Congress shall make no law.

    Reply this comment
    • sealaw 29 November, 2017, 10:23

      “Congress shall make no law” is the opening phrase of the First Amendment, NOT the Second. There is no qualifying clause on the 2A that infers the States, or any other level of government, may “infringe”. “Shall not be infringed” applies to ALL levels of government, not just Congress…

      Reply this comment
  11. Bisley 28 November, 2017, 11:34

    Whether a justice votes for the court to hear any particular case is more a matter of strategy than law, or what they would like to see resolved. It turns on the particular facets of law, or section of the Constitution involved in the case, and even more on whether the votes are there to produce a ruling in the direction they would favor.

    At the moment, there are four leftist justices on the court who are nearly certain to oppose any expansion of firearm rights, and three conservative justices likely to affirm the public’s right to arms. Roberts is not to be relied upon, he generally upholds the plain meaning of the Constitution, but not always (Obamacare) — Kennedy is flaky and unpredictable, liable to rule in any direction on anything. The conservative justices would be foolish to vote to bring cases before the court that might well result in rulings they disagree with, set precedents that would stand for many years, and maybe never be overturned. The cases mentioned here aren’t likely to be brought before the court unless there is a change in the makeup of the court that would make a ruling in favor of the 2nd Amendment more probable — and they shouldn’t be.

    Reply this comment
    • Edwin Vieira 29 November, 2017, 09:32

      You are evidently not aware that it requires only four (4) Justices to agree to grant a petition for a writ of certiorari. So if the “liberal” four Justices had thought that they could get a 5-4 majority to uphold the 4th Circuit’s Kolbe decision, certiorari would have been granted.

      Reply this comment
  12. Shaft 28 November, 2017, 11:40

    We The People know what we have to do.

    Reply this comment
  13. TyranniCull Industries 28 November, 2017, 12:52

    Screw SCrOTUS! We ALL know damned good and well what “shall not be infringed” means and we don’t need a bunch of corrupted “lions under the throne” to Judge-splain it to us.

    Freedom requires bravery, NOT permission. Live FREE or die trying!

    Reply this comment
  14. Edwin Vieira 28 November, 2017, 13:12

    Frosh (the AG of Maryland) is right…the gun-control fanatics will now shop the Fourth Circuit’s decision in Kolbe around the county, aiming to convince other State legislatures and courts to follow the “reasoning” in Kolbe and ban all “weapons of war” as not protected by the Second Amendment to any degree whatsoever. And the NRA-types, wedded to the notion of the “individual right to keep and bear Arms”, will lose again and again in the legal circus, because “weapons of war” are not “necessary” for individual self-defense. The gun-control fanatics have hit on the winning slogan; and the NRA-types have no riposte (which us why they have taken to calling “black rifles” “modern SPORTING rifles”, as a rather obvious attempt to evade the “weapons of war” issue). So now watch the Second Amendment being eroded away because neither side wants to address the first thirteen words of the Amendment (almost as if they were working together).

    Reply this comment
    • Bisley 28 November, 2017, 14:47

      “Who are the militia? Are they not ourselves? It is feared, then, that we shall turn our arms each man against his own bosom. Congress have no power to disarm the militia. Their swords, and every other terrible implement of the soldier, are the birthright of an American. …[T]he unlimited power of the sword is not in the hands of either the federal or state governments, but, where I trust in God it will ever remain, in the hands of the people.”– A Pennsylvanian, The Pennsylvania Gazette, 20 February 1788

      Reply this comment
    • Cal 28 November, 2017, 19:11

      Dr. Vieira, I agree with everything you have written about the Second Amendment and how it is to be implemented. But… (Always a “but” right?)

      I personally do not believe that they (framers) meant for the people to follow color of law where the Second (or any other right of the people) is concerned. My question is, since the US Constitution requires that the Militia be trained as the miltiary is trained, and it is to the states that “the Authority of training” (and the Appointment of the Officers) would one not think that it would be the Veterans that train all in the different states? If those that serve wtihin our state governments are as corrupt as those who serve within the federal, then should we not use the same means as would be used to train and ready the people as the Militia, the vets? Not sure about the assigning Officers, how that could be Lawfully handled without a complete makeover of many state governments.

      Am I way out of line in my reasoning?

      Also, Publius Huldah, where she states that: “No State may lawfully make any law which contradicts its State Constitution or which interferes with Congress’ power to “organize, arm, and discipline, the Militia”.
      Accordingly, any State Statute which purports to require a permit before one may carry a gun is probably unconstitutional under that State’s Constitution; and is certainly unconstitutional under the federal Constitution because Congress may lawfully require able-bodied male Citizens to acquire firearms and ammo and report to their local Militia Unit for training!”

      This rings true to me, except for the word “may”, because as I read it, they are REQUIRED to use the Militia to
      — Enforce the US Constitution (supreme Law) and each state’s Constitution (highest Law of the state),
      — Enforce and keep the “Laws of the Union” (which are constitutional laws ONLY),
      — Protect the country against all enemies both domestic and foreign, and
      — “to suppress Insurrections and repel Invasions”.

      With this being true (as I read Clause 15) is it not a requirement for both governments, though the state governments can use the Militia for much more? If this be a requirement, then the way I see it is that the only excuse they have today for using the various agencies, etc for those purposes is because there is not enough Militia of the several states trained to do their duty. If we get them trained, what excuse can they then use?

      Reply this comment
      • Nick 30 November, 2017, 09:23

        I’m not sure what you mean when you say “follow the color of law”, but if you are implying that Militia should NOT comply with acts deemed unconstitutional by the People, then I would agree. This is, after all, a nation of popular sovereignty.
        As far as general officers, the governor would appoint them in most cases. I haven’t read all state constitutions, but that seems to be the case. For other ranks the body of Militia would, or should elect their own officers. That seems to have been the format.
        As a veteran I’ve written, as futile as it may seem, the governor asking for a position in Militia befitting my experience. Although past the age that I would be required, I’m more than willing to go out and lend whatever assistance I can.
        I’m sure there are many here who would be glad to train others, but that is not the issue. A friend recently posted “Supreme Court, The 2nd Amendment And The NRA” by Dr. Vieira, along with a link to Kolbe v Hogan, pointing specifically to Dr. Vieira’s Amicus Brief.
        It was posted to what we laughingly refer to as a pro-2nd site. The detractors immediately started. The vast majority will not admit that they know nothing at all about the right they claim to support.
        Another problem is that once you explain to people that in addition to doing away with gun control laws, they actually have to do something other than make monetary contributions to organizations that will never support the full force of the 2nd, they will have to get out there and bear those arms a few times a year, with the exception of a few, you will immediately see backs turned.
        A complete re-education of those who belong to the NRA, GOA, and affiliate groups is necessary.
        I would think that people such as Stewart Rhodes, and David Codrea have enough horse power to be out there challenging people like LaPierre, and Pratt to support all 27 words of the 2nd as the Founders intended. A public debate would be enlightening to say the least.

        Reply this comment
  15. Linda 29 November, 2017, 04:46

    What about this…”Nov 27 2017…Motion for leave to file amici brief filed by Edwin Vieira, Jr., et al. GRANTED…”

    http://www.scotusblog.com/case-files/cases/kolbe-v-hogan/

    Reply this comment
  16. Nick 29 November, 2017, 09:19

    “Weapons of war are precisely what “We the People” are entitled to have. That’s why the militia was deemed “necessary to the security of a free State” by the Founders.”
    Perhaps the issue in bringing these cases is the fact that the legal team of the petitioner has a vested interest in keeping the struggle alive rather than winning it and returning Sovereignty firmly to the hands of the People.

    Reply this comment
  17. Edwin Vieira 29 November, 2017, 09:35

    You are evidently not aware that it requires only four (4) Justices to agree to grant a petition for a writ of certiorari. So if the “liberal” four Justices had thought that they could get a 5-4 majority to uphold the 4th Circuit’s Kolbe decision, certiorari would have been granted.

    Reply this comment
    • David Codrea Author 30 November, 2017, 07:40

      Is this addressed to me? If so, my admitted speculation merely acknowledges uncertainty of outcome as a reason to balk. Heller and McDonald “majorities” notwithstanding, Roberts has become increasingly sympathetic to etablishment interests, meaning that uncertainty would extend to both “sides.”

      Reply this comment

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