Friday, August 15, 2014

Maryland's 'Assualt Weapons' Ban - District Court Judge says it's Okay

Here's a link to the Judge's opinion on the ruling over at Scribd. Url

On October 1, 2013, the state of Maryland enacted the piece of legislation commonly referred to as SB281; it was titled as the Firearm Safety Act of 2013. FSA 2013 enacted various restrictions to Marylanders' Second Amendment rights. The restrictions introduced include a licensing requirement for handguns (the HQL), a tightening on the 20 round magazine limit to 10 rounds, a ban on firearms with a fixed magazine capacity over 10 rounds (though I'm not sure if .22 tube magazines over 10 rounds are banned), a ban on ammunition with a projectile core constructed of basically anything other than lead (excludes 'trace' amounts of said material) and a ban on firearms deemed to be assault weapons and any 'copy-cat' of those firearms (most determined by make and model, the rest by what and how many 'assault' features it has such as a folding stock).

This legislation was enacted and sold as a way to reduce or prevent mass shootings similar to the 2012 elementary school massacre in Connecticut. Coincidentally, Maryland would experience a shooting of this type in less than 6 months after the legislation went into effect on October 1, 2013 where an individual used a firearm not categorized as an 'assault weapon' to kill and injure people in a mall. I bring up the Maryland incident simply because it illustrates one the several failures of exactly this type of legislation that had been proposed around the country during the 2012-2013 time frame. Pro-gun organizations filed a complaint to have the Courts review the legislation in Sept 2013; the Judge's opinion was filed August 12, 2014. 

In the Judge's opinion she upholds Maryland's new law. In the Judge's opinion, she indicates that she "seriously doubts that the banned assault long guns are commonly possessed for lawful purposes, particularly self-defense in the home, which is at the core of the Second Amendment right, and is inclined to find the weapons fall outside Second Amendment protection as dangerous and unusual." I personally, have serious concerns with that statement. She makes it sound like the majority of people who purchase said firearms intend to use them for illicit activities though it doesn't appear that these activities were defined. I find it exceedingly hard to believe that out of all the people who purchase assault weapons, the majority intend to use them to rob people, commit mass shootings or other crimes. Although, if you qualify "fighting a tyrannical government" as unlawful then it's possible that her statement could apply (note that uprising against the government IS technically unlawful even if the politicians truly WERE tyrannical, assuming that a majority of assault weapon owners bought them for that purpose).  She also makes other statements that are questionable but does go on to say that it was not the court's position to "resolve whether the banned assault weapons and [large capacity magazines] are useful or commonly used for lawful purposessee Woollard, 712 F.3d at 875–76 (making clear that courts need not decide the infringement issue to rule on Second Amendment claims), and will assume, although not decide, that the Firearm Safety Act places some burden on the Second Amendment right. See Heller II, 670 F.3d at 1260–6.” In that last part the Judge specifically states that the courts assume that the legislation does put a burden on the rights protected by the Second Amendment (and yes it does place a burden on the rights). For this to play out in our favor, there needs to be proper arguing on the pro-rights side but this is just part one.

Is this Constitutional?  I don't think our elected politicians care

This ruling doesn't surprise me at all, mostly because we don't have any real ruling on what level of scrutiny to use when questioning laws regarding rights protected under the Second Amendment. Until the Supreme Court chooses which level of scrutiny to use, these sorts of laws are likely going to stay on the books. Of course for these laws to go, we would likely need to have strict scrutiny, which I assume that under strict scrutiny, FSA 2013 would be unconstitutional.

That said, I have this idea that says that this sort of arbitrary legislation may end up being the ONLY thing these elected politicians can successfully manage to pass, which may also end up being the only gun-control laws they can make stick under current level, maybe future levels, of scrutiny. Either way, these laws appear to be allowed to stay regardless of any effect on the proposed crimes, even if that effect is none. I say this because I believe in the principle of alternatives. "Assault weapons" are usually defined as firearms that have a number of certain features. For "assault rifles," they're usually defined as centerfire, semi-automatic rifles with detachable magazines that have at least two "assault" features such as a folding stock and flash suppressor. They then go on to market this law as a way to prevent the proposed crimes simply by saying that these firearms are useful in those illicit activities, such as mass shootings. This is one of the biggest failings.

The main reason of the failing of these laws is usually due to the principle of alternatives. While a number of firearms were banned, they were done so by make and model then by features then by the copy-cat clause. The wording still doesn't, and can't, account for firearms that are fundamentally similar to the firearms banned especially if that gun is a new design. What I mean is, if I wanted an AR-15 and went to the gun store and they didn't have an AR-15 but next to it was a Mini-14 (one of many alternatives), then I would be able to buy said alternative and still be effective at whatever my intent was because the alternative doesn't have all those features, wasn't listed by name or a copy of another gun on the list. A hypothetical example might be like going to a car dealer to buy a Toyota Carola (our Colt AR-15 substitute) because you like the way it looks on the website. But since the State banned cars from having big spoilers and a body kit, just like the one found on the Toyota website (this would be like the folding stock and flash suppressor or assault feature test) and the Toyota Carola was banned by name for whatever reason (similar to how Maryland banned the Colt AR-15 by name), you can't buy the Carola in this State so you end up buying a Honda Civic (the Mini-14) which is a direct competitor to the Carola in every way. The Civic is still a low cost, compact size, fuel efficient car just like the Carola but it's legal due to all the feature tests; just don't put a big spoiler or body kit on the Civic because it would be illegal in the hypothetical State ban. This example applies because the newest arms being sold in gun stores aren't blocked by any of the three tests applied to the prohibited items. The new stuff may have some kind of compliance configuration making it legal (i.e. the Civic doesn't come with the big spoiler and body kit) and since those guns are new they haven't been added to the make and model list which would also prevent them from being ruled as copy-cats because they are new designs; they are originals. Despite that, these firearms are fundamentally similar as they are centerfire, semi-automatic rifles with detachable box magazines. The Browning BAR (not the M1918 Browning Automatic Rifle but the current model) or the Remington 750 LOOK like hunting rifles (which they were designed for specifically hunting) but are, fundamentally, the same as a Springfield M1a or AR-15 which is normally available to the civilian population but banned in Maryland. So again, what good did all this work do if there are still "these kinds of guns on the streets?" Well, nothing except prohibit those specific models from being sold in Maryland and bringing in revenue from the dealers who sell the popular stuff. In reality it would have been a far more effective ban had those elected politicians simply said "ban all centerfire, semi-automatic rifles." Instead of using all that complicated wording, fighting over features, making adjustments then being put into a tizzy later after finding out someone could still buy these guns, they could have saved a huge amount of time and anxiety by just banning centerfire, semi-automatic rifles. If you don't think I'm right, look at the SB281 enrollment PDF found on the Maryland MGALEG site. You can read ALL the complicated wording and whatnot for yourself. It takes them about 4 pages of legalese what I did in one sentence or you can just look at California's dead SB374.

So why don't these anti-gun, elected politicians just ban centerfire, semi-automatic rifles? Well, I don't know for sure but I can speculate. It breaks down as they either don't know what they're doing or they do. Either way, they're either familiar with firearms technology or they're not. Either condition doesn't appear to matter to these people anyway as they clearly put forth their proposed legislation. In my opinion, the majority of the elected politicians don't know about gun technology and propose or vote on gun-control legislation out of ignorance and political opinion. I think that the two YouTube links below are great examples of this lack of knowledge, both on the Federal and State levels. This ignorance is perfectly demonstrated by US House Rep. Carolyn McCarthy and Colorado State House Rep. Diana DeGette.

In those videos, the two elected politicians demonstrate a lack of knowledge but still feel "we need this law." In McCarthy's case she is asked to describe what a barrel shroud is. She goes on a sweet little tangent about why we need this law, etcetera, avoiding the question. Then when re-asked, she specifically states that she doesn't know what a barrel shroud is (even though she introduced the legislation). She then attempts to answer by describing, what she thinks a barrel shroud is, as "the thing that goes up," which ends up sounding like a over-folding stock found on some shotguns. In DeGette's case, she is asked about high capacity magazines. Normally, I could forgive this one a bit because there are a ton of people that don't know the difference between a magazine and clip, and use the terms interchangeably, but in her case it she totally blows it. She's just wrong in her explanation. She defines a high capacity magazine as ammunition. Not a storage device or ammunition feeding device but simply the ammunition in and of itself; the actual cartridges. She says that after the magazines are banned and once an individual consumes the "magazine clip" by shooting all the ammunition, they will no longer be able to use those devices and wouldn't be available anymore; they will be gone. The best example I can come up with to describe what she thinks a magazine is would be like a really big ketchup packet; you empty it then throw it away. Any individual mildly informed on the subject of firearms would know that magazines are reusable. BTW, in most cases, if not all, clips are reusable as well. Again, we have an individual who proposes a law restricting constitutionally protected rights who can't demonstrate a basic functioning knowledge of the subject matter. DeGette may have also simply been too nervous to articulate properly but I still suspect a lack of knowledge.

As I highlighted above with the two examples, I said I think the majority of those elected peoples who put forth and vote for gun-control legislation just don't have a solid, basic knowledge regarding modern firearm technology. However, I also believe that some of these politicians have been doing this far too long to NOT have learned something. I think that there is a good size number of anti-gun people who know that these assault weapon bans have massive holes and allow for alternatives. However, I think that there is a small number of said politicians who know that there is a significant chance that a total ban on semi-automatic rifles is unconstitutional. Knowing this likelihood but still wanting to restrict gun rights as much as they can, they might feel that the safe play is just to ban a small group of semi-automatic rifles (rifles they label as assault rifles) so that it flies under the legal bar and is allowed to stick. There is a high likelihood that the majority of everyday people aren't exactly familiar with firearms so to try to get public support for a ban, the politicians would need these rifles to have obvious differences compared the rest of the semi-automatic rifle group so that your average voter wouldn't have to know anything about guns other than "this one looks scarier than this one." See the linked picture here. That picture is a good example of the visible differences being played by anti-gun politicians and taking advantage of a lack of public knowledge. The public has a mental image of what certain firearms look like that they derived from consumed media and elected politicians know how to play on peoples fears and mental imagery. Essentially, those politicians know the guns they call assault rifles have no fundamental difference between other centerfire, semi-automatic rifles (even the ones specifically setup for hunting). They also know that the Second Amendment protects rights related to firearms and that, at the very least, a general ban on a group of firearms (such as handguns) is unconstitutional. However, the group of semi-automatic rifles is a group within the larger category of rifles; other categories of rifles include single shot rifles or manually operated, repeating rifles. Banning the whole category of rifles in general would be MASSIVELY unconstitutional, and such a proposal would likely get you laughed off the stage in many states, but banning a small subsection of rifles would likely stick under current low levels of scrutiny (it might stick under strict scrutiny in limited circumstances). In addition to constitutionality, politics is at play. In a non-supermajority state, a ban on "assault rifles" has a higher percent chance of being voted for than a full ban on semi-automatic rifles. It would likely be harder to get the votes needed for a full semi-automatic rifle ban to be passed than a ban on "assault rifles."

I should note that California had proposed a state law in 2013 that passed their Congress but was vetoed by their Governor. Their legislation was SB374 which appears to be a complete and total ban on semi-automatic rifles. Their governor vetoed it saying it was too over-reaching which is partly evidence of why I think a complete ban on semi-automatic rifles would likely be unconstitutional.

Unless a state passes a full ban on semi-automatic rifles, then said State's ban on "assault rifles" just doesn't mean much (as if any gun ban would be effective at stopping mass shooting or other violent crime). But if a full ban on all semi-automatic rifles were to occur, it would likely end up being ruled as unconstitutional and too over-bearing; at least in my opinion. If you were inclined to suppress people's natural right to keep and bear Arms and the best you can get away with is some tiny sliver of an ignorant gun ban then the likelihood is that gun bans, such as Maryland's Firearm Safety Act of 2013, is exactly what your looking for. Just enough to piss on those evil Second Amendment gun rights but just shy of being ruled as unconstitutional, too bad they aren't useful for anything else.

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