David Kopel Before The Supreme Court
BY Herschel Smith
2 years, 9 months ago
Today I filed an amicus brief in support of a cert. petition challenging Maryland’s ban on various semiautomatic rifles. The case is Bianchi v. Frosh, and was brought by the Firearms Policy Coalition, the Second Amendment Foundation, and individual plaintiffs. Petitioners are represented by the D.C. powerhouse litigation boutique Cooper & Kirk. (Docket page here, Petition here.)
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Many lower courts have narrowed Heller from below.
Failure to grant review would tempt Congress to enact a national ban, over-riding the policy choices of 43 states.
The Fourth Circuit’s novel rule that governments can ban all firearms that are supposedly “like” military arms is based on an egregious misreading of one phrase from Heller. The Fourth Circuit rule would uphold a ban on many common firearms, such as the ubiquitous Colt 1911 .45 caliber pistol, and every semiautomatic pistol that is essentially similar to the Colt, which is to say all of them.
The Maryland ban harms public safety because the rifles that it singles out for prohibition are easier to fire accurately, easier to store safely, and often superior for lawful self-defense. To say that improved firearms can be banned because criminals might take advantage of the improvements would be to say that firearms can never be improved.
He gets into “common usage” as well, and we can all agree that any weapon can be and has been a military weapon and that the common usage doctrine was an abominable and inconsistent idea. As one reader pointed out recently, if something isn’t in common usage, it cannot be introduced into circulation and therefore will never become commonly used.
But Kopel is one of the good guys, and he knows what he’s doing. He has to play within the rules he’s been given.
On February 14, 2022 at 1:13 am, Dan said:
While we have been lucky and have had some wins in court, Heller being one of them, the biggest problem is WHO infests the bench most of the time. The vast majority of judges are anti 2A. And as time goes by more and more of those types are appointed or win a seat on the bench. That ugly reality means that actual facts don’t matter. The Constitution doesn’t matter. Reality doesn’t matter. The criminal left….which controls probably 80% or more of the judiciary want us disarmed. And NOTHING short of their ceasing to turn O2 into CO2 will stop them from trying to do exactly that.
On February 14, 2022 at 3:12 pm, Frank Clarke said:
@Dan: Although it pains me to say it, ‘Heller’ was far from being ‘a win’. Scalia dumped enough weasel words into that opinion that it hardly means anything.
Here’s what ‘a win’ would look like:
https://dispatchesfromheck.blogspot.com/2010/04/how-to-write-decision-in-mcdonald-v.html