Editorial: Second Amendment rights aren’t a gift from the courts – Tyler Morning Telegraph

The Fourth Circuit Court of Appeals is going to war with the U.S. Supreme Courts Heller decision, and its reasoning is both troubling and erroneous. Essentially, the court says Americans have no inherent right to own vaguely defined assault weapons.

That ruling, if later upheld by a post-Scalia Supreme Court, would gut the Second Amendment - which was never about hunting.

On Tuesday, the U.S. Court of Appeals for the Fourth Circuit ruled that the Second Amendment doesnt protect assault weapons - an extraordinary decision keenly attuned to the brutal havoc these firearms can wreak, writes Slate magazine. Issued by the court sitting en banc, Tuesdays decision reversed a previous ruling in which a panel of judges had struck down Marylands ban on assault weapons and detachable large capacity magazines.

The majority opinion begins with an appeal to emotion, by citing a list of recent shootings. It then goes on to invent an entirely new test for Second Amendment policy - whether guns or devices have a military purpose.

Whatever their other potential, the court wrote, such weapons are unquestionably most useful in military service. That is, the banned assault weapons are designed to kill or disable the enemy on the battlefield.

These military combat features have a capability for lethality - more wounds, more serious, in more victims - far beyond that of other firearms in general, including other semiautomatic guns.

As Slate sums up, the AR-15 is a weapon of war, not the tool of self-defense envisioned by the Heller court, and therefore can and should be regulated.

Thats flawed reasoning, says Daniel Horowitz in the Conservative Review.

The notion that any common weapon can be banned violates the inalienable right to self-defense, which predated the Second Amendment, he writes. It is a natural right. Yet, given that we live in a world where rights come from the Supreme Court, we should at least ensure that lower courts properly read the text of the Heller decision.

He quotes Justice Scalia, who wrote that majority opinion: A constitutional guarantee subject to future judges assessments of its usefulness is no constitutional guarantee at all. Constitutional rights are enshrined with the scope they were understood to have when the people adopted them, whether or not future legislatures or (yes) even future judges think that scope too broad.

The Fourth Circuit says its balancing interests - the right of self-defense versus public safety. That, too, is flawed, Horowitz contends.

There is no government interest balancing for perceived benefits of public safety that can justify the infringement upon the right to self-defense for any commonly held weapon used for lawful purposes, he writes.

And thats clearly laid out in Heller.

We are aware of the problem of handgun violence in this country, and we take seriously the concerns raised by the many who believe that prohibition of handgun ownership is a solution, that decision reads. But the enshrinement of constitutional rights necessarily takes certain policy choices off the table.

The Fourth Circuit was wrong in its reasoning and in its ruling.

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Editorial: Second Amendment rights aren't a gift from the courts - Tyler Morning Telegraph