Let's get to work cleaning out the judicial swamp. Judges that think their job is to make up judicial concepts that contravene the Constituion simply so that they can impose their ideology on the American people have to be kicked to the curb.
Waiting for Justice Gorsuch
An appellate-court ruling guts the Heller gun-rights decision.
Updated Feb. 23, 2017 7:17 p.m. ET
Photo: Getty Images
If you want to know why millions of Republicans voted for Donald Trump despite their doubts about his values or policies, look no further than Tuesday’s ruling by the Fourth Circuit Court of Appeals on gun rights. The 10-4 en banc decision shows how a liberal Supreme Court majority would eviscerate the Second Amendment.
The Fourth Circuit is one of several appellate courts that Barack Obama remade over eight years, and in Kolbe v. Hogan the liberal majority upheld Maryland’s Firearm Safety Act. That law bans firearms such as the popular, semiautomatic AR-15 rifle that gun-control advocates call an “assault weapon.”
The Supreme Court’s landmark D.C. v. Heller decision in 2008 upheld an individual right to bear arms, explicitly for guns in “common use.” But the Fourth Circuit’s judicial progressives didn’t let a mere precedent stand in their political way. They concocted a new “military use” legal test. Politicians can ban a firearm, they ruled, if a judge determines that it is “most useful in military service.”
Give them credit for creativity if not fidelity to the law. As Judge William Traxlernoted in searing dissent, the “heretofore unknown” military-use test is a purely judicial invention with no historical or legal basis. By that logic, he noted, the muskets favored by America’s colonial settlers could have been banned because they were clearly the same weapons they used in war.
The Fourth Circuit majority simply ignored that hundreds of thousands of Americans own and use AR-15 rifles in lawful ways. This would seem to be a textbook example of “common use” under the Heller standard.
The ruling applies only to Maryland, but it has national implications if other states and judges adopt its logic. The Supreme Court has been reluctant to accept gun-rights cases since its McDonald v. Chicago ruling in 2010 that applied Heller to the states. And progressive politicians have been using that reluctance to press greater regulation of firearms. The Fourth Circuit has now invited progressives everywhere to rewrite Heller.
This is also how a liberal Supreme Court majority would have gone about overturning Heller if Hillary Clinton been able to replace the late Justice Antonin Scalia. Mr. Trump’s nomination of Neil Gorsuch means that a new majority will soon be in place to reinforce Heller, and a good place to start would be to take the Fourth Circuit’s Kolbe ruling and reverse it after Mr. Gorsuch is confirmed.
The lower-court assault on gun rights also shows that the Trump White House needs to move fast to fill the 18 seats currently open on federal appellate courts. When Mr. Obama took office in 2009, 10 of 13 appellate courts had majorities appointed by GOP Presidents. Now nine of 13 have Democratic-appointed majorities. Mr. Obama appointed 55 appellate judges in eight years, about one-third of the total. Mr. Trump and Republicans need to get cracking while they still have a Senate majority.
Waiting for Justice Gorsuch
An appellate-court ruling guts the Heller gun-rights decision.
Updated Feb. 23, 2017 7:17 p.m. ET
Photo: Getty Images
If you want to know why millions of Republicans voted for Donald Trump despite their doubts about his values or policies, look no further than Tuesday’s ruling by the Fourth Circuit Court of Appeals on gun rights. The 10-4 en banc decision shows how a liberal Supreme Court majority would eviscerate the Second Amendment.
The Fourth Circuit is one of several appellate courts that Barack Obama remade over eight years, and in Kolbe v. Hogan the liberal majority upheld Maryland’s Firearm Safety Act. That law bans firearms such as the popular, semiautomatic AR-15 rifle that gun-control advocates call an “assault weapon.”
The Supreme Court’s landmark D.C. v. Heller decision in 2008 upheld an individual right to bear arms, explicitly for guns in “common use.” But the Fourth Circuit’s judicial progressives didn’t let a mere precedent stand in their political way. They concocted a new “military use” legal test. Politicians can ban a firearm, they ruled, if a judge determines that it is “most useful in military service.”
Give them credit for creativity if not fidelity to the law. As Judge William Traxlernoted in searing dissent, the “heretofore unknown” military-use test is a purely judicial invention with no historical or legal basis. By that logic, he noted, the muskets favored by America’s colonial settlers could have been banned because they were clearly the same weapons they used in war.
The Fourth Circuit majority simply ignored that hundreds of thousands of Americans own and use AR-15 rifles in lawful ways. This would seem to be a textbook example of “common use” under the Heller standard.
The ruling applies only to Maryland, but it has national implications if other states and judges adopt its logic. The Supreme Court has been reluctant to accept gun-rights cases since its McDonald v. Chicago ruling in 2010 that applied Heller to the states. And progressive politicians have been using that reluctance to press greater regulation of firearms. The Fourth Circuit has now invited progressives everywhere to rewrite Heller.
This is also how a liberal Supreme Court majority would have gone about overturning Heller if Hillary Clinton been able to replace the late Justice Antonin Scalia. Mr. Trump’s nomination of Neil Gorsuch means that a new majority will soon be in place to reinforce Heller, and a good place to start would be to take the Fourth Circuit’s Kolbe ruling and reverse it after Mr. Gorsuch is confirmed.
The lower-court assault on gun rights also shows that the Trump White House needs to move fast to fill the 18 seats currently open on federal appellate courts. When Mr. Obama took office in 2009, 10 of 13 appellate courts had majorities appointed by GOP Presidents. Now nine of 13 have Democratic-appointed majorities. Mr. Obama appointed 55 appellate judges in eight years, about one-third of the total. Mr. Trump and Republicans need to get cracking while they still have a Senate majority.
