A while ago we wrote about the case of Kolbe v. Hogan.  This involved Maryland’s ban on AR-15 and similar semi automatic rifles.  The case was brought before a district court and ultimately made its way to the 4th Circuit Court of Appeals.  Recently, they released a decision that: like their brothers and sisters on the 9th Circuit in many of their decisions, eschews the Constitution and the directives of the Supreme Court in favor of a policy based outcome, rather than good jurisprudence.

In other words… the 4th Circuit has engaged in the time honored tradition of engaging in “MSU”… (Making S@#%T Up)

The late Justice Scalia recognized the Second Amendment of the Constitution as a core fundamental right in the case of Heller v. District of Columbia, (later clarified as applicable to the states in McDonald v. Chicago).  Recognizing the Second as a fundamental right implicated the 14th Amendment and as such prohibited States from enacting statutes or ordinances that touched upon the Second Amendment, unless the needs of the State were balanced against the needs of the people through a virtually insurmountable balancing test.

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This test is referred to as “strict scrutiny”.  Essentially a fundamental right,  like all fundamental rights, (ie: speech, freedom of religion, due process, etc.) can only be limited if there is a “compelling State interest, and there are no less restrictive alternatives that can be applied to achieve that compelling State interest.  As a general matter of form, there are always “less restrictive alternatives”… and as a result, the vast majority of statutes that implicate a fundamental right fail when tested against a “strict scrutiny” analysis.

If on the other hand, a right is deemed to not be a “fundamental right” a lower standard of review is called for.  Here the statute in question will be upheld as Constitutional if the law is “rationally related to a legitimate government purpose”.

In Heller, Justice Breyer issued a dissent.  In his dissent, he suggested that the Second Amendment… well, it might be a “right”… but hey,….guns are kinda dangerous (and scary)…and the desires of the State… well, they need to be really considered a little bit more than that pesky desire to err on the side of freedom.  To ensure that the anti gun crowd would be able to continue to promulgate regulations of guns, he suggested an “intermediate level of review” for statutes that implicate the Second Amendment.  His proposed idea was that if there was a “significant government interest, and the regulation was substantially related to that interest” the court should err on the side of the State and uphold that statute.

Here is the thing… Justice Breyer’s dissent has no force of law!

It is a:  “Gee… if I only had four other justices that agreed with me, I could have foisted this on the American people thing, but I didn’t… so what the hell… this is what I would have done.”

Naturally, courts like the 4th and the 9th have decided to essentially ignore the directives of the Supreme Court under Heller and actually adopt the intermediate level of review test established by Justice Breyer.

What the hell?!?!

Imagine, if this was not a Second Amendment question and instead involved a statue that implicated the First Amendment.

If a dissenting conservative justice were to suggest that freedom of religion, while acknowledged as a core fundamental right, should be tested under Justice Breyer’s intermediate level of review, and lower courts ignored the majority opinion that the First Amendment was sacrosanct and required a strict scrutiny analysis… instead, adopting the dissenting justices policy, there would be riots in the street!

Not so with the battered and abused Second Amendment.

Justice Thomas finally issued a smack down Jackson v. San Francisco. 

Jackson appealed to the Supremes and was ultimately denied Certiorari (essentially the court deferred to the lower court and refused to hear the case).  Justice Thomas was less than pleased with his court’s decision not to hear the case.  In a dissent to the granting of Cert., Justice Thomas essentially said “why the hell are these lower courts ignoring us in our clear directive to use strict scrutiny and instead using that whole “intermediate level” nonsense?

He also quoted a line from the original Heller that bears repeating:  “A Constitutional Right subject to future judges’ assessments of its usefulness is no Constitutional guarantee at all.”

So, that brings us back to Kolbe.

Evidentially, the court decided not to listen to Justice Thomas’ admonition.  They went ahead and instead tested the statute banning the AR-15 against an intermediate level of review.  From their decision, it is clear that jurisprudence was not at the forefront of their decision.  Making sure anti-gun policy was upheld in their view was far more important.

Years ago, a teacher friend of mine was ecstatic that Barrack Obama had been elected President.  He was excited about the possibilities that now existed to “move this country in a more progressive direction.”

I asked him what he meant by that, and he started listing off potential government programs that could be created or expanded to develop his utopia that he dreamt of.

I explained that his ideas were dangerous.

Not the gravamen of his desires.  I disagreed with what he wanted to do from a policy standpoint, but what really concerned me was the governmental and legal architecture that would have to be put in place to create the utopia he dreamt of.

“What happens when you have built all these pathways to government control, pathways that by their very definition limit the freedom of the individual, and suddenly.. years from now…you have a government in place that is despotic.  Or, as the case may be… a government that rejects the progressivism you have developed and sought to use the established architecture for their own agenda?  An agenda that by definition is antithetical towards yours?

His response was less than thoughtful.  He believed that the glories of the new regime would make anything but progressivism impossible for the American people to accept forever more.

Well… we saw how that turned out.

This is the same problem with policy driven legal decisions.  Justice Holmes once famously stated “Hard cases make bad law”.

What he was referring to were cases that tugged on the emotional strings of justices, or cases where individual judicial prejudices had to be ruled against to ensure logical consistency of juris prudence.

While the Justices of the 4th Circuit might have achieved their policy goals… the damage they have done to the Constitution is paramount.

Perhaps, Justice Thomas might soon be able to admonish the lower courts again.