James A. Kodak v. Eric H. Holder, Jr.

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-1221
JAMES A. KODAK,
Plaintiff - Appellant,
v.
ERIC H. HOLDER, JR., in his official capacity as Attorney
General of the United States, and his employees, agents and
successors in office,
Defendant – Appellee.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. William M. Nickerson, Senior District
Judge. (1:08-cv-02527-WMN)
Submitted: August 10, 2009 Decided: August 26, 2009
Before KING, DUNCAN, and AGEE, Circuit Judges.
Affirmed by unpublished per curiam opinion.
James A. Kodak, Appellant Pro Se. Larry David Adams, Assistant
United States Attorney, Baltimore, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
James A. Kodak appeals the district court’s dismissal
of his First Amended Complaint against the U.S. Attorney General
seeking an injunction to prevent the enforcement of the federal
ban on armor-piercing ammunition, 18 U.S.C. § 922(a)(7), (8)
(2006), and a declaratory judgment that the ban is
unconstitutional. Finding no error, we affirm.
In his informal brief, Kodak argues that the federal
ban on armor-piercing ammunition violates the Second Amendment
because “[i]t strikes at the very core of what the right to keep
and bear arms is all about; the necessity to provide for an
effective citizens’ militia.” Kodak contends that banning
armor-piercing ammunition essentially renders a militia and its
weapons useless because the enemy will be wearing armor. Kodak
also contends that armor-piercing ammunition minimizes the risk
of death when used for self-defense.
The Second Amendment provides that “[a] well regulated
Militia, being necessary to the security of a free state, the
right of the people to keep and bear Arms, shall not be
infringed.” U.S. Const. amend. II. In District of Columbia v.
Heller, 128 S. Ct. 2783, 2797 (2008), the Supreme Court held
that the Second Amendment “guarantee[s] the individual right to
possess and carry weapons in case of confrontation.” However,
that right is not unlimited. Id. at 2816. The Heller Court
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clarified that “the Second Amendment does not protect those
weapons not typically possessed by law-abiding citizens for
lawful purposes” and that “the sorts of weapons protected were
those in common use at the time” the Amendment was ratified.
Id. at 2815-17 (internal quotation marks and citation omitted).
Further, the Heller Court acknowledged that:
It may be objected that if weapons that are most
useful in military service-M-16 rifles and the like-
may be banned, then the Second Amendment right is
completely detached from the prefatory clause. But as
we have said, the conception of the militia at the
time of the Second Amendment’s ratification was the
body of all citizens capable of military service, who
would bring the sorts of lawful weapons that they
possessed at home to militia duty. It may well be
true today that a militia, to be as effective as
militias in the 18th century, would require
sophisticated arms that are highly unusual in society
at large. Indeed, it may be true that no amount of
small arms could be useful against modern-day bombers
and tanks. But the fact that modern developments have
limited the degree of fit between the prefatory clause
and the protected right cannot change our
interpretation of the right.
Id. We find that this analysis forecloses Kodak’s argument that
armor-piercing ammunition is necessary for an effective present-
day militia.
Additionally, the district court took judicial notice
that “armor-piercing ammunition is not in common use by law-
abiding citizens for lawful purposes,” noting that it “has no
application for hunters” and “is frequently referred to as ‘cop-
killer bullets.’” Kodak argues that the proper question should
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be whether armor-piercing ammunition would be common in the
absence of the federal ban. Even if possession of armor-
piercing ammunition would be more common were it not banned, it
does not necessarily follow that it would be commonly used by
law-abiding citizens for lawful purposes, considering the great
risk such ammunition poses to law enforcement officers.
Therefore, we conclude that the federal ban on armor-piercing
ammunition, pursuant to 18 U.S.C. § 922(a)(7), (8), does not
violate the Second Amendment.
Accordingly, we affirm the district court’s judgment.
We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
AFFIRMED

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