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Speaker 1: The full Fourth Circuit Court of Appeals upheld Maryland's ban

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Speaker 1: on forty five kinds of assault weapons and its ten

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Speaker 1: round limit on gun magazines, ruling with the Second Amendment

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Speaker 1: doesn't protect quote weapons of war. Maryland passed the sweeping

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Speaker 1: gun control measure after the massacre at Sandy Hook Elementary

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Speaker 1: School in twelve. The vote was ten to four, where

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Speaker 1: the strongly worded dissent by Judge William Trexler, who said

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Speaker 1: that the majority has gone to greater lens than any

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Speaker 1: other court to eviscerate the constitutionally guaranteed right to keep

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Speaker 1: and bear arms. Our guests are Adam Winkler, a professor

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Speaker 1: at u c l A Law School, and Mark Graeber,

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Speaker 1: professor at Europe at the University of Maryland Law School.

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Speaker 1: Adam explained the reasoning of the majority opinion well. What

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Speaker 1: the majority said in an opinion written by Judge Robert

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Speaker 1: King was that assault weapons are not covered by the

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Speaker 1: Second Amendment and as a result, the government did not

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Speaker 1: need particularly strong justification to limit access to them. The

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Speaker 1: same reasoning the courts had applied to high capacity magazines.

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Speaker 1: The court said that these were weapons of war and

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Speaker 1: liken them to machine guns, automatic fire weapons and because

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Speaker 1: of their what the Court said was their exceptional lethality, um,

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Speaker 1: these firearms were not protected at all by the Second Amendment.

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Speaker 1: The Court then did say alternatively, UM, offering perhaps reasoning

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Speaker 1: for the Supreme Court, should the Supreme Court choose to

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Speaker 1: get in UH involved that should they conclude otherwise, and

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Speaker 1: that these weapons were included in the Second Amendment, the

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Speaker 1: Court would have applied intermediate scrutiny and the law would

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Speaker 1: have been upheld anyway for furthering UH the important government

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Speaker 1: interest in public safety? Mark. What do you make of

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Speaker 1: that reasoning? And in particular, uh, isn't that pretty consistent

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Speaker 1: with what the Supreme Court said back in the in

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Speaker 1: the hell Ared decision a decade ago, when they for

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Speaker 1: the first time said the Constitution does protect individual gun rates. Well,

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Speaker 1: it's fairly consistent with the provides. Though that the Heller

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Speaker 1: opinion is notoriously they and people on all sides of

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Speaker 1: the gun issue can read into it what it wants.

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Speaker 1: Where the opinion breaks a bit of new ground with

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Speaker 1: assault rifles is most opinions on assault rifles have applied

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Speaker 1: intermediate scrutiny and found that you can ban assault rifles

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Speaker 1: under intermediate scrutiny. What the First Circuit has done has said,

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Speaker 1: in fact, this really isn't a weapon covered by the

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Speaker 1: Second Amendment at all, because what we have here really

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Speaker 1: is a military weapon, and that's not what is normally

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Speaker 1: used to protect homes, but to assault the enemy. Just markets.

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Speaker 1: You want to clarify, I think you said First Circuit

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Speaker 1: there you're you're talking about the Fourth Circuit Nurse case. Okay,

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Speaker 1: so um adam the descent I mentioned Judge William Tracksler.

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Speaker 1: He wrote that this should be subject to strict scrutiny review.

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Speaker 1: Which kind of review do you think it should be

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Speaker 1: subject to? And why? Well, of course they don't give

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Speaker 1: me a vote on any of these things. So uh.

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Speaker 1: But other courts have generally held as Mark says, that

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Speaker 1: intermediate scrutiny applies. Generally courts have disagreed with what the

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Speaker 1: Fourth Circuit did, hear in saying that these guns are

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Speaker 1: not protected at all by the Second Amendment. Most other

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Speaker 1: circuits have either held that they are protected by the

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Speaker 1: Second Amendment or um that the courts will presume they're

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Speaker 1: protected by the Second Amendment. And then, and the reason

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Speaker 1: why is because the Supreme Court in the Heller case

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Speaker 1: did suggest that firearms that are in common use for

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Speaker 1: lawful purposes are protected by the Second Amendment. And there

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Speaker 1: are about seventy five million high capacity magazines out there

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Speaker 1: in America, and there are maybe about ten million assault

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Speaker 1: rifles or assault weapons, so arguably they are in common use. Now.

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Speaker 1: Of course, those other courts have nonetheless upheld the restrictions

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Speaker 1: on such weapons. Find thing that even though it burdens

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Speaker 1: Second Amendment rights under intermediate scrutiny, the law still survives. Um.

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Speaker 1: But the descent here was very objected to the idea

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Speaker 1: that these weapons were not protected by the Second Amendment

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Speaker 1: at all. Mark one thing that that Adam just said there, Um,

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Speaker 1: it kind of made me wondering. So is this an

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Speaker 1: area of law where where because more people own a

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Speaker 1: certain type of weapon, that means the Constitution gives it

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Speaker 1: greater protection. Is that is that where we are in

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Speaker 1: the law And does that make sense? Well, that's what

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Speaker 1: the majority and minority were debating. The minority said, well,

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Speaker 1: if lots of people own it, it is therefore in

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Speaker 1: common use. What the majority said is what is the

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Speaker 1: primary use? Looking at what kind of weapon is and

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Speaker 1: it doesn't matter if lots of people own it, if

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Speaker 1: it turns out it's primary use, or it's most designed

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Speaker 1: the military use, then it's not a Second the Amendment weapon. So,

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Speaker 1: in fact, what you've said is precisely the issue. Are

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Speaker 1: we going to determine Second Amendment protection by the number

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Speaker 1: of people who only done or what the doune is

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Speaker 1: designed to do? Adam, I know that the Second Circuit

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Speaker 1: upheld bands passed in New York and Connecticut. In have

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Speaker 1: any circuits refused to uphold bands. No, there's no split

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Speaker 1: in the circuits at this point. In fact, one of

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Speaker 1: the reasons why the Fourth Circuit decision this week, the

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Speaker 1: unbanked ten to four decision, was so important, was because

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Speaker 1: the Fourth Circuit um, the original three judge panel, had

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Speaker 1: suggested that the assault weapons ban was likely unconstitutional and

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Speaker 1: that strict scrutiny would apply, and that was going to

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Speaker 1: create the circuit split. So what the Court has done here,

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Speaker 1: although it diverged from some of the reasoning of some

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Speaker 1: of the other circuits, nonetheless reached a conclusion that is

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Speaker 1: consistent with all of the other circuits that have ruled

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Speaker 1: on it. There have been four um total, and they've

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Speaker 1: all said that these bands on assault weapons and restrictions

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Speaker 1: on high capacity magazines are constitutionally permissible. Mark, I want

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Speaker 1: to ask you about a concurring opinion by Judge Wilkinson.

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Speaker 1: He talked about the notion of judicial restraints and he said,

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Speaker 1: uh quote, disenfranchising the American people on this life and

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Speaker 1: death subject would be the gravest, gravest and most serious

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Speaker 1: of steps. It is their community, not ours. It is

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Speaker 1: their safety not ours, it is their lives not ours.

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Speaker 1: What do you make of that language? What do you

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Speaker 1: think of it is known for judicial restraints. So in fact,

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Speaker 1: he doesn't believe courts should get involved in same sex marriage,

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Speaker 1: in affirmative action. And so what he was trying to

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Speaker 1: do is say, this isn't an opinion really about guns,

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Speaker 1: but it's an opinion about the role of the judiciary.

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Speaker 1: I think some of the more liberal members of the

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Speaker 1: Court are in favor of judicial activism, for example in

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Speaker 1: same sex marriage. That's why they would not sign on

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Speaker 1: to that opinion. Judge Wilkins, I said, simply wants court

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Speaker 1: to stay out of all contentious issues, gun rights being

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Speaker 1: just one of many. Adam about thirty seconds. Since there

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Speaker 1: is no split in the circuits. Are is talk of

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Speaker 1: appealing this to the Supreme Court going nowhere? Well, there

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Speaker 1: may be a petition to the Supreme Court to accept

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Speaker 1: the case, but I think it's unlikely. The Supreme Court,

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Speaker 1: even when Justice School it was alive and voting, refused

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Speaker 1: to accept any assault weapons ban cases, and without a

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Speaker 1: split in the circuit, I'd be surprised if the Supreme

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Speaker 1: Court were to step in now. Thank you both for

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Speaker 1: being on Bloomberg Law. That's Adam Winkler, he's a professor

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Speaker 1: at u c l A Law School. And Mark Graber,

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Speaker 1: he's a professor at the University of Maryland Law School.

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Speaker 1: That's it for this edition of Bloomberg Law. We'll be

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Speaker 1: back tomorrow one pm, Wall Street Time. Please join us then.

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Speaker 1: Thanks to our technical director Reginald Bazil and our producer

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Speaker 1: David Suckerman. Carol Asser and Corey Johnson are coming up

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Speaker 1: now with Bloomberg Markets. Good afternoon, Carol, what have you

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Speaker 1: got to done? We're gonna talk a bit about Warren

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Speaker 1: Buffett's annual letter to shareholders. Also, President Ruff meeting with

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Speaker 1: manufacturing CEOs today. And Howard Love an entrepreneur and angel

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Speaker 1: investor where he's finding opportunities. That's coming up on Bloomberg Markets.

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Speaker 1: Right now on Bloomberg Radio, I'm June Grosso with Greg Store.

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