Rule of Law at Risk by US Courts

When Neil Gorsuch was nominated to fill a vacancy on the United States Supreme Court, conservatives were ecstatic. Rightly so, I would add, since Judge Gorsuch has represented the crucial quality of choosing to put the authority of the Constitution above his own moral preferences. Will Justice Neil Gorsuch Make a Difference?
The late Justice Antonin Scalia fought a losing battle against judicial activism—which is choosing to put the results of laws above their constitutional process. Judge Gorsuch won’t be able to stop the intellectual flow in that direction. And the Fourth Circuit’s latest ruling on the Second Amendment proves that judicial activists don’t even need a monopoly on the Supreme Court to continue their work.
The Supreme Court has recently avoided hearing cases on the Second Amendment’s “right to bear arms,” so the Fourth Circuit’s verdict will likely stand. In its 10-4 decision made on February 21, the court decided to uphold a ban on “assault weapons” and “high-capacity magazines” in the state of Maryland. In doing so, the court not only managed to rewrite the Supreme Court’s previous District of Columbia v. Heller decision and weaken the Second Amendment, but it also spread some fake news about rifles like AR-15.
Though the Second Amendment protects the rights of citizens to bear arms, the courts have traditionally placed some limit on the types of weapons available. In the landmark District of Columbia v. Heller case, Justice Scalia gave the guidelines that the Second Amendment would protect all weapons that were “in common use at the time.” The exception to the rule would be those weapons that were “dangerous and unusual.”
David French, an attorney who writes for National Review, explained the reasoning:
Why the addition of “and unusual”? Because every single working gun ever made is dangerous. To illustrate his point, Scalia then provides examples of specific types of “dangerous and unusual” guns—”M-16 rifles and the like.” Here’s a news flash: The M-16 isn’t the same as a civilian “assault weapon” like the AR-15. The M-16 variants in use in the United States military are capable of being fired in both semiautomatic and fully automatic (three-round burst) modes. If you think that the M-16 and AR-15 are alike, then walk to your local gun store and try to buy an M-16.Go ahead.
I’ll wait.
In order to uphold Maryland’s semiautomatic weapon ban, the Fourth Circuit tried to equate the fully automatic M-16 with the civilian semiautomatic AR-15. In what French calls a “spit-out-your-coffee sentence,” the majority opinion published that “Semiautomatic weapons can be fired at rates of 300 to 500 rounds per minute, making them virtually indistinguishable in practical effect from machine guns.” A semiautomatic weapon will only load the next round—the trigger must be pulled again in order to fire. The Fourth Circuit would have you believe that the millions of citizens of citizens who own these weapons can pull their triggers six times a second for a minute. That’s impossible.
But forget Heller’s “dangerous and unusual” criteria, because the Fourth Circuit created a new one. Judge William Byrd Traxler Jr., who wrote the dissent, said in order to circumvent this precedent, the majority opinion simply created “a heretofore unknown ‘test,’ which is whether the firearm in question is ‘most useful in military service.’” Judge Traxler continued in his dissent, showing how the ruling would have affected a citizen at the time of the Second Amendment’s ratification:
Under the majority’s analysis, a settler’s musket, the only weapon he would likely own and bring to militia service, would be most useful in military service—undoubtedly a weapon of war—and therefore not protected by the Second Amendment. This analysis turns Heller on its head. Indeed, the court in Heller found it necessary to expressly reject the view that “only those weapons useful in warfare are protected.”
The “most useful in military service” test is ridiculous because you could use it to theoretically ban any weapon. Writing last year in a unanimous Caetano v. Massachusetts decision, Supreme Court Justice Samuel Alito ruled that although a “Supreme Judicial Court’s assumption that stun guns are unsuited for militia or military use is untenable,” it didn’t mean that they could be banned.
Pulling out new criteria from thin air to support a decision that already goes against a Supreme Court ruling is practically the definition of judicial activism. But that won’t stop gun-control activists from hailing it as a constitutional victory. Indeed, the executive director of Marylanders to Prevent Gun Violence, Elizabeth Banach, cheered that the Fourth Circuit’s ruling was “overwhelming proof that reasonable measures to prevent gun violence are constitutional.”
Sorry, but having a court rule that something is constitutional doesn’t make it constitutional. Judges, as the currently eminent Judge Richard Posner would tell you, “dress up their theories in an elaborate way” to fit their feelings—political, moral, emotional—on the case at hand.
We could discuss more reasons why the majority’s decision is merely their moral preference rather than a ruling on the law, but you can read that in Judge Traxler’s official dissent. It’s clear enough from the start of the majority’s opinion, where the brutal details of the 2012 Sandy Hook massacre and other shootings are laid out to set the moral scene. It reads as if they took notes from former President Barack Obama’s speeches on gun control, making sure emotion takes center stage.
Gun violence is sick, horrifying and far too prevalent. Preventing another Sandy Hook is imperative. But the consequences of eroding the rule of law are worse. Right now, to those who support gun control, an activist judge seems like a blessing. But what happens when activist judges are on the other side? What happens when the rule of law becomes the rule of the judge’s opinion?
After being infamously and disgracefully blocked from a position on the U.S. Supreme Court for thinking the Constitution mattered more than his own opinion, Robert Bork wrote the following: “[T]he principles of the actual Constitution make the judge’s major moral choices for him. When he goes beyond such principles, he is at once adrift on an uncertain sea of moral argument.” The judge who looks outside the Constitution for guidelines, he wrote, can only look “inside himself and nowhere else.”
If we as a people don’t obey the rule of law, then we fall victim to the rule of man. This leads to the horrifying rule of brute force. President Donald Trump says the U.S. will begin to “restore the rule of law.” The liberal left says he is threatening it. In the meantime, while the Supreme Court sits in limbo with eight judges, the U.S. Court of Appeals has meted out judicial activism on immigration and gun control. The result, no matter the executive branch, is a chipping away at the rule of law—and, eventually, freedom.

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