Federal Court of Appeals Goes Berserk During Second Amendment Gun Case Hearing

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On May 11, 2016, all ffourteen active judges of the Fourth Circuit Court of Appeals heard oral arguments in a case challenging the state of Maryland’s semi-automatic rifle ban. I listened to the hearing in disbelief. After the initial shock subsided somewhat, the first thing that came to mind is how can this be happening in an American court?

As I listened to the judges scream, rant and rave at the attorney for the plaintiffs seeking to overturn Maryland’s ban on semi-automatic rifles, I had a flashback to a short film I saw fifty years ago when I was in elementary school.

1973_Colt_AR15_SP1 discussed in Court of Appeals.
Colt AR-15 semi-automatic rifle discussed in Court of Appeals. Photo: Steelerdon at en.wikipedia, CC BY 3.0, https://commons.wikimedia.org/w/index.php?curid=10075318

Every now and then my school would interrupt the monotony of classroom instruction by gathering the students into the 400 seat auditorium and entertain us with a variety of short “educational films.”

One day, we saw a short film about Nazi Germany which included a segment featuring Adolph Hitler’s prosecutor, Roland Freisler, prosecuting men who were accused of being complicit in an attempted assassination of the German dictator. Keep in mind that I watched this film in the 1960s. Before the Internet, before the World Wide Web, before YouTube. What I knew of courtroom decorum was what I had seen on TV.

Bundesarchiv Bild 183-J03238, Roland Freisler.
Photo: Roland Freisler – Germany license. Attribution: Bundesarchiv, Bild 183-J03238 / CC-BY-SA 3.0

Roland Freisler did not behave like what I had seen on the TV show Perry Mason.

I do not have the words to describe the incoherent ravings of a madman. The best I can do is to provide links to Freisler’s courtroom antics and to an audio recording of the Fourth Circuit Court of Appeals hearing in the case of Kolbe v. Hogan so you can make your own comparisons and judge for yourself.

I can say that in these past six years I have listened to and/or watched Federal appellate hearings in literally hundreds of cases. Not just Second Amendment cases but cases involving the Constitutional challenges I have raised against California’s Open Carry bans in my California Open Carry lawsuit such as cases involving the Fourth and Fourteenth Amendments.

Every now and then a judge would get testy, or impatient, or roll his eyes, or make a snide remark he shouldn’t have but until now, I have never heard or seen the likes of what took place in that American courtroom.

Not all judges spoke during the hearing which is damning in and of itself. Not a single one of the fourteen judges on that Federal en banc panel of judges cautioned his fellow judges to behave themselves.

Nor has any member of the press reported on what went on in that courtroom. So much for the Fourth and Fifth Estates.

Nor will you read or hear any lawyer or law school professor condemning or even faintly criticizing what transpired. Such is the sad state of the American justice system.

Nor can we expect our Congress to take corrective action. There is an often quoted myth that Federal judges are appointed for life. The Federal Constitution (Article III, Section 1) says that Federal judges shall hold their offices during “good behavior.” Unlike a President, who must be impeached, tried and convicted by the Senate for committing high crimes and misdemeanors before he can be removed, Federal judges can be removed by the Congress virtually at will.

But Congress won’t be removing any of these judges. The members of Congress can’t even balance a budget.

Here is a short clip from one of Roland Freisler’s show-trials.

Here is an mp3 audio recording of the Kolbe v. Hogan hearing from the Fourth Circuit Court of Appeals web site.

Here is a list of the judges on the en banc panel of the Fourth Circuit Court of Appeals -> http://www.ca4.uscourts.gov/judges (Note, Circuit Judge Allyson Kay Duncan did not sit on the panel). Here is the entry from the Federal docket:

05/11/2016 139 EN BANC ORAL ARGUMENT heard before the Honorable William B. Traxler, Jr., J. Harvie Wilkinson, III, Paul V. Niemeyer, Diana Gribbon Motz, Robert B. King, Roger L. Gregory, Dennis W. Shedd, G. Steven Agee, Barbara Milano Keenan, James A. Wynn, Jr., Albert Diaz, Henry F. Floyd, Stephanie D. Thacker and Pamela A. Harris. Attorneys arguing case: Mr. John Parker Sweeney for Appellants Wink’s Sporting Goods, Incorporated, Atlantic Guns, Incorporated, Associated Gun Clubs of Baltimore, Incorporated, Maryland Shall Issue, Incorporated, Maryland State Rifle and Pistol Association, Incorporated, National Shooting Sports Foundation, Incorporated, Maryland Licensed Firearms Dealers Association, Incorporated, Andrew C. Turner and Stephen V. Kolbe and Matthew John Fader for Appellees Maryland State Police, William M, Pallozzi, Brian E. Frosh and Lawrence J. Hogan, Jr.. Courtroom Deputy: Sarah Carmichael.