So, let's say you're a liberal judge -- or, in this case, a whole bunch of liberal judges ruling
en banc -- and you really don't like the
Heller decision. However, the author of that decision recently died, so you figure you can tee up the Supreme Court to reverse it in a new precedent. Thus, you decide to issue a ruling completely ignoring the
Heller decision, and
creating a wholly new standard for what kind of weapons deserve 2nd Amendment protection.
The problem is that the new standards doesn't just ignore
Heller. It also directly violates the logic of the prior most-important 2nd Amendment Supreme Court Ruling,
United States vs. Miller.
The
Miller ruling appears to say that the
only weapons the 2nd Amendment protects are those that are suitable for militia service, as for example by being of "ordinary military equipment." What the new 4th Circuit case says is that
no weapons are protected if they are "most useful in military service." In other words, the two categories are mutually exclusive: the Supreme Court's standard is exactly the opposite of the 4th Circuit's.
And that's if you throw out the
Heller decision entirely, as if it never existed.
However, it does exist.