Today, 10 states criminalize the possession of rifles that the American people choose the most often for self-defense, target shooting and hunting. State officials openly flaunt the Second Amendment’s protection of the “right of the people to keep and bear arms.” In the courts, they gaslight U.S. Supreme Court precedent and pretend to uphold it.
The judges upholding such laws have betrayed the Founders’ vision. In The Federalist No. 46, James Madison heralded “the advantage of being armed, which the Americans possess over the people of almost every other nation,” in contrast with “the several kingdoms of Europe,” where “the governments are afraid to trust the people with arms.” And when Madison proposed what became the Second Amendment, Tench Coxe (1755-1824) explained, “As civil rulers, not having their duty to the people duly before them, may attempt to tyrannize … the people are confirmed … in their right to keep and bear their private arms.”
In District of Columbia v. Heller (2008), the Supreme Court held that “the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding.” Further, it protects “arms ‘in common use at the time’ for lawful purposes like self-defense” and arms that are “typically possessed by law-abiding citizens for lawful purposes … .”
The first courts to uphold “assault-weapon” bans admitted that the prohibited rifles and magazines are in common use, but invented their own balancing test to say that the government interest overcomes the rights of the citizens. The Fourth Circuit, in Kolbe v. Hogan (2017), went further and claimed that ordinary semi-automatic rifles are “exceptionally lethal weapons of war” and “are unquestionably most useful in military service.” Voilà! Maryland’s ban on ordinary non-military rifles not used in any wars is constitutional. The same court repeated that holding in Bianchi v. Frosh (2021).
Not so fast. When the Supreme Court decided New York State Rifle & Pistol Association v. Bruen (2022), it wrote that “even though the Second Amendment’s definition of ‘arms’ is fixed according to its historical understanding, that general definition covers modern instruments that facilitate armed self-defense.”
The Court disallowed use of the subjective balancing tests devised by some lower courts. And it overturned the Bianchi decision, directing the Fourth Circuit to reconsider the issue in light of Bruen.
The Fourth Circuit heard oral argument in what was renamed Bianchi v. Brown this past March. The majority of judges doubled down against Heller’s common-use test and repeated the fiction that the banned rifles are “weapons of war.” One judge even claimed that that “the AR-15 is the M16.” As if no consequential difference exists between semi-
automatic and fully automatic firearms.
Judge Harvie Wilkinson harkened back to his days in the Army Reserve, in 1968-69, when he fired an M16, writing: “And when we took shots at the targets, wherever we hit, there was nothing left, the kick was so powerful that when the bullets hit the human beings, it splintered them into all sorts of little pieces, there was very little left of the human being, and that was a very earlier model of the M16, and since then it’s been perfected, and perfected, and perfected into an even more lethal weapon than the ones that I used.”
Actually, both back then and now, the M16 (like most AR-15s) fires the relatively underpowered 5.56 mm cartridge. It has very little kick. And while obviously the 5.56 can be lethal, in no way does it even come close to “splintering” a human into “little pieces.”
While the rhetoric was toned down when the court issued its decision in August, what it said would make any person familiar with firearms wonder what planet the court is on. But first, let’s conduct a reality check on the characteristics of different higher-powered and lower-powdered rifle cartridges.
For over a century, millions of American deer hunters have chosen the .30-06 round. That is what our Armed Forces used in the M1903 bolt-action rifle and the M-1 Garand semi-automatic rifle. The .308 or 7.62 mm cartridge, which the military used in the M-14 rifle, became a popular deer-hunting round. Numerous other rounds are on the market of equal or better take-down power.
In 1950, the .222 Remington cartridge was developed for varmint hunting. It evolved into the .223 Remington, which in turn became the basis of the 5.56 mm cartridge adopted by the military for use in the M16 and favored by many target competitors. Neither round is preferred by most deer hunters, as most loads are too underpowered to harvest big game.
Maryland game regulations require that rifles used for deer hunting must fire ammunition achieving a muzzle energy of at least 1,200 foot-pounds. A 5.56 round with a 55-grain bullet generates 1,223 ft.-lbs. of muzzle energy. By contrast, a .308 round with a 150-grain bullet fires with 2,648 foot-pounds of muzzle energy—over double that of the 5.56.
“The proscribed arms are indisputably in common use by law-abiding citizens.”
–Judge Julius Richardson
As is plain to see, the power of the .223/5.56 round isn’t much to speak of compared to typical big-game hunting rounds. It is so underpowered that the Armed Forces are replacing its 5.56 M16 and M4 rifles with a new 6.8x51 mm round (the XM7), which has muzzle energy of 2,267 ft.-lbs. with a 135-grain bullet.
Now to the en banc decision in Bianchi, authored by Judge Wilkinson who was joined by 10 other judges. On cartridge power, it includes a single long paragraph with citations to five anti-gun district court opinions and an article from The Washington Post, but no expert sources. It begins: “The firepower of the AR-15 and M16 is a key component of their ‘phenomenal lethality.’” They are “[b]uilt to generate ‘maximum wound effect’ and to pierce helmets and body armor ... .”
You can’t have it both ways. Maximizing the wound size requires a bullet with a soft nose or hollow point that expands. Piercing a helmet or armor requires a bullet with a steel core or other hard metal that will not expand.
Instead of comparing other rifle cartridges with the underpowered 5.56/.223, the court compares this rifle cartridge with handgun cartridges. Supposedly “AR-15 bullets discharge at around ‘three times the velocity of a typical handgun ... .’” What is a “typical” handgun? Are they aware that rifles in the AR-15 configuration come in many calibers, including as small as .22 rimfire?
“These higher velocity rounds ‘hit fast and penetrate deep into the body,’ creating severe damage,” claims the court. Most bullets from most firearms have that potential. The court claims that an AR-15 bullet “yaws” or “turns sideways” in tissue, rotating and creating a large, “temporary cavity” or “blast wave” that can be “up to 11-12.5 times larger than the bullet itself.” That’s oblivious to the fact that more powerful rifle rounds would have much more devastating effect. But that doesn’t justify banning the rifles that fire them.
This is a complex subject, and the court just didn’t do any real homework. Dr. Martin Fackler, military trauma surgeon and former director of the Army’s Wound Ballistics Laboratory, wrote in the Annals of Emergency Medicine (Aug. 1996): “The most common misconception about gunshot wound treatment is that the penetration of any ‘high-velocity’ bullet causes enigmatic ‘shock waves’ and cavitation that will doom tissues even far from the bullet path.”
The Bianchi court next inappropriately compares wounds from rifles to those from handguns. It asserts that a “typical 9 mm [bullet] wound to the liver” from a Glock 19 handgun “will produce a pathway of tissue destruction in the order of one inch to two inches,” but an AR-15 wound “will literally pulverize the liver, perhaps best described as dropping a watermelon onto concrete.” Hyperbole aside, a deer rifle chambered in .30-’06 Springfield would cause much more injury. Again, should deer rifles be banned?
Bianchi tells us that the “catastrophic” damage of AR-15 rounds leaves “multiple organs shattered,” bones “exploded” and “soft tissue absolutely destroyed,” which “often cannot be repaired” by trauma surgeons. That potential exists for wounds from shots fired from firearms of almost any kind.
A cartridge does not care what type of firearm fires it. A .223 round fired from an AR-15 will cause exactly the same wound as one fired from a single-shot rifle that Maryland does not ban. Yet the Bianchi court seeks to justify the ban on certain rifles based on the wounding potential of the cartridge they fire, when countless other rifles fire exactly the same cartridge. Presumably all rifles that fire this cartridge, not to mention all that fire more-powerful cartridges, may be banned. That would be most rifles other than the .22 rimfire.
Descriptions of wounds in the goriest manner possible to justify a gun ban loses sight of the fact that the Second Amendment protects “arms,” which include “any thing that a man wears for his defense, or takes into his hands, or useth in wrath to cast at or strike another.” (Heller, quoting Timothy Cunningham’s 1771 legal dictionary.) That criminals injure and kill innocents with arms is reason for innocents to have arms, not to ban them.
What about the fact that AR-15s are in the hands of millions of Americans and Heller held that firearms in common use are protected? Bad test, says Bianchi: “Such a trivial counting exercise makes a mockery of the careful interest balancing between individual self-defense and societal order that our legal tradition has carved into the heart of the right to keep and bear arms.” That is in blatant disregard of Bruen’s directive that interest balancing is out the window.
Bruen also held: “When the Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct. The government must then justify its regulation by demonstrating that it is consistent with the Nation’s historical tradition of firearm regulation.” For historical regulation, Bianchi cites irrelevant laws on the storage of gunpowder and on carrying Bowie knives concealed. A concurring opinion all but rejects Bruen itself: “Bruen has proven to be a labyrinth for lower courts, including our own, with only the one-dimensional history-and-tradition test as a compass.”
The dissenting opinion by Judge Julius Richardson, joined by four other judges, hits the nail on its head: “The proscribed arms are indisputably in common use by law-abiding citizens for lawful purposes.” He also noted that these arms “are useful and appropriate for self-defense and are neither ‘military weapons’ nor more useful for criminal activity than handguns.” As a side note, he knows about firearms personally. He wrote: “Speaking from experience, many hog hunters deploy the exact weapons that Maryland bans, including the AR-15.”
What was Bianchi v. Brown is now Snope v. Brown, as the lead plaintiff (wisely) moved out of Maryland. A cert petition was filed in the U.S. Supreme Court in August. We’ll see if the Court takes the case.
Attorney Stephen P. Halbrook is a senior fellow with the Independent Institute. His latest books are America’s Rifle: The Case for the AR-15 and The Right to Bear Arms: A Constitutional Right of the People or a Privilege of the Ruling Class? See stephenhalbrook.com.
