Pt. 1: The 4th Circuit, an Assault on Common Sense

This week, the 4th Federal Circuit Court of Appeals upheld the Maryland legislature’s 2013 Firearm Safety Act which includes a woefully misguided ban on certain categorized “Assault Weapons” quick summation from Reason Magazine:

In Kolbe, the 10-judge majority concludes that the guns and magazines covered by Maryland’s ban are “dangerous and unusual” because they are “exceptionally lethal weapons of war” that are not appropriate for civilian use: “We are convinced that the banned assault weapons and large-capacity magazines are among those arms that are ‘like’ ‘M-16 rifles’—’weapons that are most useful in military service’—which the Heller Court singled out as being beyond the Second Amendment’s reach.” The four dissenters, by contrast, note that “assault weapons” and “large-capacity magazines” are indisputably “in common use for lawful purposes,” since they are owned by millions of law-abiding Americans: “As long as the weapon chosen is one commonly possessed by the American people for lawful purposes—and the rifles at issue here most certainly are—the state has very little say about whether its citizens should keep it in their homes for protection.”


I can understand fully a reasonable person wanting to do “what they can” to mitigate gun violence and – especially if they are ignorant of firearms – think an assault weapon ban is an appropriate measure. After all, that’s what politicians tell you to think, even to the point of “brainwashing” the public at large (don’t believe me? click that last link). There is a constant stream of misinformation that comes from the mouths of politically motivated people both in media punditry and holders of elected office that is tough to overcome, especially if one considers the apparent lack of a gun culture that exists in more urban environments compared to rural ones (that statement is of course not all encompassing but useful for the sake of thought). Now, I will not be touching upon the philosophical underpinnings on whether there is a right to bear arms in this article (that’s going to be the next one), instead what I will do in this article is break down some of the ambiguous language within the court’s opinion (drawn from Circuit Judge King’s decision) and how it correlates to the technical reality of the weapons they saw fit to criminalize for citizens of Maryland, as well as how it correlates to the landmark Supreme Court Case DC vs Heller.


In the 4th Circuit’s decision, the term “assault weapon” in conjunction with the Maryland legislature, is designated by specific model types, and what they refer to as copycat variants described as

a semiautomatic centerfire rifle than can accept a detachable magazine and has any of the two following: A pistol grip that protrudes conspicuously beneath the action of the weapon, a folding stock, a grenade launcher or flare launcher, a flash suppressor, . . . the capacity to accept more than 10 rounds, . . . [rifle] that has an overall length of less than 29 inches.

Interestingly, you’ll note that all of the rifles, pistols, and shotguns given in the bill are labelled (appropriately) as semiautomatic which put simply means that for every one trigger pull a single bullet is expelled. These weapons according to Judge King “are among those arms that are “like” “M-16 rifles” — “weapons that are most useful in military service” — which the Heller Court singled out as being beyond the Second Amendment’s reach. . . . Put simply, we have no power to extend Second Amendment protection to the weapons of war that the Heller decision explicitly excluded from such coverage.” So, according to Judge King, these semiautomatic weapons are “like” an M-16 such to the extent that they are tantamount to “weapons of war” and therefore unsuitable for civilian ownership per DC vs Heller. Of course, this is a very myopic take on the late Justice Scalia’s decision as all of the qualities which a given AR-15 civilian variant shares with the Military’s M-16 are aesthetic (more on that in my next piece too.), and furthermore it was he clearly states that arms can be “weapons that
were not specifically designed for military use and were not employed in a military capacity”. Assault Rifles, properly understood as being those used by militaries, differ from all of these other now banned assault weapons in one significant factor – they are capable of automatic fire. This conflagration is a common ploy used by gun
control centralizing advocates, but the technical reality is that your common civilian AR-15 is incapable of automatic fire and therefore is not “like” an M-16 rifle that a Soldier or Marine would carry into battle except for (again) aesthetic qualities like the stock, mounting rack, and grips for ease of use.

The Armalight design has become one of the most popular styles of rifle in the modern day

This leads well into the next area of misinformation peddled by the 4th circuit as justification for their upholding of the ban, the highly specious claim that these semi-automatic weapons “can be fired at rates of 300 to 500 rounds per minute, making them virtually indistinguishable in practical effect from machineguns.”. If one does the quick math for the lowest number given (300 rpm ÷ 60 sec = 5 rps) we see that in order to achieve this rate of fire one must pull the trigger five times every second continuously for a minute – not including reload time. Incidentally, one of the fastest competition shooters in the world is capable of achieving this number in a controlled environment, and frankly it’s rather impressive to watch. However, considering that most people are not professional shooters, and that the shooter would have to reload multiple timesin order to achieve that amount, and the associated cost of 600 rounds of ammunition – it seems foolish to consider this compelling enough to consider semiautomatic weapons the equivalent to those used in warfare. According to Jon Davis, a Marine weapons instructor, a more realistic amount would be somewhere between 45 to 150 rounds a minute. Actually 150 rounds might be for good shooters. I might not be surprised to see someone fire 180 rounds with a normal AR-15 and a lot of training.”  That number halves whatever statistic the Judge used to serve his point on the high end, and with a little logic and a deference to expertise, it is seems far more likely that the vast majority of shooters – whether criminal or law-abiding – would not be able to achieve the exorbitant numbers cited as proof for these weapons being like those used by the military.


This kind of rhetorical sophistry is par for the course in the debate on firearms, and whether neglectful or purposeful the skewed data and specious claims for the sake of removing from the market today’s most popular types of rifle will not stop crime, and will not stop the next dedicated shooter intent on causing harm. In my next piece on this subject (entitled Aesthetics, Individualism and the gun debate) I will be delving more deeply into the philosophical reason why a right to bear arms exists in the US constitution, why it should exist in any free society, why so many authoritarians disagree with that assertion, and why authoritarians are so obsessed with the aesthetic of a given problem, not real solutions.



Questions, comments, gripes or complaints?