Ignoring Heller: the 4th Circuit’s Blunder in Kolbe v. Hogan

We typically lump attorneys into the same category as cats and women — capricious, heartless, and not to be trusted. There are a few we’re okay with, however, and Adam is one of ’em. Today we’re gonna let him get up on his big brain lawyer-y soapbox.  Mad Duo

The 4th Circuit’s Blunder in Kolbe v. Hogan

Adam Kraut

Recently, the 4th Circuit issued a decision en banc in Kolbe v. Hogan which proclaimed that “assault weapons” and “large capacity” magazines are not protected by the Second Amendment.

Quick bit of history about the case for those who don’t know how it originated. Kolbe challenged Maryland’s Firearm Safety Act of 2013 (“FSA”), which bans AR-15s and other military-style rifles and shotguns as well as detachable large capacity magazines, by contesting the constitutionality of the law under the Second Amendment. He had a few other constitutional claims but this article is not going to address those.

More points of reference, when a Court examines the constitutionality of a law, it employs a scrutiny test. There are three different kinds, rationale basis, intermediate scrutiny and strict scrutiny. Each has a higher bar to pass muster with strict scrutiny being the highest.

At the District Court (trial courts of the federal system), the judge ruled that the FSA was constitutional. After analyzing the Second Amendment claims, the Court expressed doubt that “assault weapons” and “large capacity magazines” were protected by the Second Amendment. It employed an intermediate scrutiny test which requires that the challenged law furthers an important government interest by means that are substantially related to the goal. The Court found that Maryland’s law furthered the important interest of providing for public safety and preventing crime and did so in a manner that substantially furthered that interest.

Kolbe appealed to the 4th Circuit and a three judge panel reversed the District Court’s decision. The panel found that the Second Amendment protected the rifles and magazines that were banned by the FSA. Of equal importance, the three judge panel found that the appropriate level of scrutiny to analyze the constitutionality of the FSA was strict scrutiny, meaning that the law must further a compelling governmental interest and must have been narrowly tailored to achieve that interest.

The Court then decided to hear the case en banc, wherein it reaffirmed the District Court’s original decision. The 4th Circuit en banc declared that “contrary to the now-vacated decision of our prior panel — the banned assault weapons and large-capacity magazines are not protected by the Second Amendment. That is, we are convinced that the banned assault weapons and large-capacity magazines are among those arms that are ‘like’ ‘M-16 rifles’ — ‘weapons that are most useful in military service’ — which the Heller Court singled out as being beyond the Second Amendment’s reach…Put simply, we have no power to extend Second Amendment protection to the weapons of war that the Heller decision explicitly excluded from such coverage.” The Court also concluded that intermediate scrutiny, not strict, was the appropriate test to apply.

This decision begs the question, how does this affect me? The answer depends on where you reside. If you are in one of the states that is under the 4th Circuit’s jurisdiction (Maryland, West Virginia, Virginia, North Carolina and South Carolina), this ruling is binding precedent. As such, any state, county, city, municipality, etc., could create a law or ordinance banning “assault weapons” and “large capacity” magazines. More importantly, and this is the scary part, a challenge to the constitutionality to such a law or ordinance with regard to the Second Amendment would result in the law being upheld under this decision.

For those that live in states not under the 4th Circuit’s jurisdiction, this ruling is not to be ignored. While it is not binding on any courts outside the 4th Circuit, it can be cited to as persuasive authority. As such, it may help shape the future opinions of other district and circuit courts.

Whether SCOTUS will take this case or not remains to be seen. Typically, SCOTUS waits until there is a disagreement amongst the circuits in order to restore uniformity. Given the makeup of the Court, I can’t venture a guess as to whether some of the justices anxious to hear another Second Amendment case will roll the dice on this one.

-Adam Kraut, Esq.

Firearms Industry Consulting Group

a division of Prince Law Offices, P.C.

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