Thursday, March 2, 2017

Contrasting Introductions in Kolbe v. Hogan

The Fourth Circuit Court of Appeals recently held that Maryland’s Firearm Safety Act (FSA), which bans AR-15s, other military-style rifles, and certain large-capacity magazines, is constitutional and does not violate the Second or Fourteenth Amendments.

This decision is controversial for a number of reasons (aren’t all cases involving guns?), but the introductions in the majority and dissenting opinions are particularly interesting. You’d expect an opinion about the constitutionality of a firearm-related statute to start with an exposition of Second Amendment law or a discussion of the specific language of the statute itself.

Not this majority opinion. It starts with a literal bang:

On the morning of December 14, 2012, in Newtown, Connecticut, a gunman used an AR-15-type Bushmaster rifle and detachable thirty-round magazines to murder twenty first-graders and six adults in the Sandy Hook Elementary School. 

Two additional adults were injured by gunfire, and just twelve children in the two targeted classrooms were not shot. Nine terrified children ran from one of the classrooms when the gunman paused to reload, while two youngsters successfully hid in a restroom. Another child was the other classroom's sole survivor. In all, the gunman fired at least 155 rounds of ammunition within five minutes, shooting each of his victims multiple times.

Both before and after Newtown, similar military-style rifles and detachable magazines have been used to perpetrate mass shootings in places whose names have become synonymous with the slaughters that occurred there — like Aurora, Colorado (twelve killed and at least fifty-eight wounded in July 2012 in a movie theater), and San Bernardino, California (fourteen killed and more than twenty wounded in December 2015 at a holiday party). 

In the early morning hours of June 12, 2016, a gunman killed forty-nine and injured fifty-three at the Pulse nightclub in Orlando, Florida, making it the site of this country's deadliest mass shooting yet. According to news reports, the Orlando gunman used a Sig Sauer MCX, a semiautomatic rifle that was developed at the request of our Army's special forces and is known in some military circles as the "Black Mamba." 

Other massacres have been carried out with handguns equipped with magazines holding more than ten rounds, including those at Virginia Tech (thirty-two killed and at least seventeen wounded in April 2007) and Fort Hood, Texas (thirteen killed and more than thirty wounded in November 2009), as well as in Binghamton, New York (thirteen killed and four wounded in April 2009 at an immigration center), and Tucson, Arizona (six killed and thirteen wounded in January 2011 at a congresswoman's constituent meeting in a grocery store parking lot).  

In response to Newtown and other mass shootings, the duly elected members of the General Assembly of Maryland saw fit to enact the State's Firearm Safety Act of 2013....

Why does Judge King introduce the case with these facts? Because they speak to the legislature’s intent in enacting the FSA. But also because they are a striking reminder of the specific harms the legislature was attempting to address. Judge King could have provided much less detail (“In response to several mass shootings across the country, the General Assembly saw fit to enact . . . .”) but by including details about these specific mass shootings, his majority opinion reflects what I’ll call the “anti-automatic rifle position” of many liberals; that is, the belief that the right to own automatic and semiautomatic rifles is not protected by the Second Amendment and that automatic and semiautomatic rifles enable those inclined to violence to inflict more harm than would be possible without those rifles.

Notice too that Judge King doesn’t provide the shooters names, only the types of weapons used and the carnage inflicted. This is intentional—he wants the reader to focus on the firearms and the acts themselves, not the perpetrator.

Lewis F. Powell, Jr. Courthouse
Fourth Circuit Court of Appeals
Contrast that introduction with the dissent’s introduction, which reflects what I’ll call the “pro-gun position” of many conservatives; that is, the belief that the Second Amendment protects the rights of citizens to bear arms of their choosing and that the harms inflicted by mass shootings are attributable to the people who perpetrate them, not the firearms used. Judge Traxler, writing for the dissent, begins:

Today the majority holds that the Government can take semiautomatic rifles away from law-abiding American citizens. In South Carolina, North Carolina, Virginia, West Virginia and Maryland, the Government can now tell you that you cannot hunt with these rifles. The Government can tell you that you cannot shoot at targets with them. And, most importantly, the Government can tell you that you cannot use them to defend yourself and your family in your home. In concluding that the Second Amendment does not even apply, the majority has gone to greater lengths than any other court to eviscerate the constitutionally guaranteed right to keep and bear arms.

If you look carefully at this introduction, you’ll notice that the word “Government” (with a capital G) appears four times in the first three sentences. This, too, is intentional and reflects the federalist position that small government is preferable and government should stay out of citizens' lives to the extent possible. Conservatives generally fear government intrusion into many parts of their lives (healthcare, religion, etc.), and the repetition of the capital-G Government highlights the dissenting judges’ belief that the majority opinion represents further unacceptable intrusion.

Judge Traxler also highlights legal activities that citizens might engage in with these weapons, rather than the illegal activities that spawned the FSA, which the majority highlights. And consider his use of the term “eviscerate,” which has a much stronger connotation that a similar term, “destroy.”

Regardless of your thoughts on the correctness of the decision, the introductions in both the majority and dissenting opinions reflect the tone, tenor, and positions of the (highly divided) left and right.  

You can find the complete opinion here.