Friday, February 5, 2016

A Win In The 4th Circuit (Updated)

The 4th Circuit Court of Appeals has not been too good for gun rights in the past few years. However, a case involving Maryland make signal a change. Kolbe v. Hogan (formerly Kolbe v. O'Malley) challenged Maryland's ban on certain semi-auto firearms and standard capacity on Second Amendment and Equal Protection Clause grounds. The District Court for Maryland agreed with the state's arguments and found the bans were constitutional using intermediate scrutiny.

Today, the 4th Circuit overturned that decision in part and remanded it back to the District Court to be reconsidered using strict scrutiny. The court affirmed the District Court's dismissal of the Equal Protection claims involving retired law enforcement and the vagueness claims that "copies" of certain firearms were not specific enough.

From the synopsis of the decision:
TRAXLER, Chief Judge, wrote the opinion for the court as to Parts I, II, and III, in which Judge Agee joined.

In April 2013, Maryland passed the Firearm Safety Act (“FSA”), which, among other things, bans law-abiding citizens, with the exception of retired law enforcement officers, from possessing the vast majority of semi-automatic rifles commonly kept by several million American citizens for defending their families and homes and other lawful purposes. Plaintiffs raise a number of challenges to the FSA, contending that the “assault weapons” ban trenches upon the core Second Amendment right to keep firearms in defense of hearth and home, that the FSA’s ban of certain larger-capacity detachable magazines (“LCMs”) likewise violates the Second Amendment, that the exception to the ban for retired officers violates the Equal Protection Clause, and that the FSA is void for vagueness to the extent that it prohibits possession of “copies” of the specifically identified semi-automatic rifles banned by the FSA. The district court rejected Plaintiffs’ Second Amendment challenges, concluding that the “assault weapons” and larger-capacity magazine bans passed constitutional muster under intermediate scrutiny review. The district court also denied Plaintiffs’ equal protection and vagueness claims.

In our view, Maryland law implicates the core protection of the Second Amendment—“the right of law-abiding responsible citizens to use arms in defense of hearth and home,” District of Columbia v. Heller, 554 U.S. 570, 635 (2008), and we are compelled by Heller and McDonald v. City of Chicago, 561 U.S. 742 (2010), as well as our own precedent in the wake of these decisions, to conclude that the burden is substantial and strict scrutiny is the applicable standard of review for Plaintiffs’ Second Amendment claim. Thus, the panel vacates the district court’s denial of Plaintiffs’ Second Amendment claims and remands for the district court to apply strict scrutiny. The panel affirms the district court’s denial of Plaintiffs’ Equal Protection challenge to the statutory exception allowing retired law enforcement officers to possess prohibited semi-automatic rifles. And, the panel affirms the district court’s conclusion that the term “copies” as used by the FSA is not unconstitutionally vague.
 The decision from the 4th Circuit was not unanimous and contains dissents, concurrences, and multiple parts. Indeed, the full decision is 90 pages long. Needless to say, it will take some time to read and digest this decision. That said, having the case sent back to the District Court to apply strict scrutiny to the Second Amendment claims is a definite win.

It will be interesting to see what legal legerdemain that Judge Catherine C. Blake will employ to assert that Maryland can still ban the most popular firearm in common use in America today even if strict scrutiny is applied.

UPDATE: Sebastian has more on this case at Shall Not Be Questioned. He is correct in saying that the ban on semi-auto rifles and standard capacity magazines still remains in place. The 4th Circuit didn't find the law unconstitutional. It merely said that it needs to be reheard using the correct level of scrutiny. This is a win but not a complete win.

UPDATE II: Attorney Andrew Branca (Law of Self Defense) has his take on the case here.

UPDATE III: Gun rights scholar and attorney David Kopel examines the case in detail in the Washington Post's Volokh Conspiracy blog. As he notes, the Second Amendment protections should extend to gun parts (magazines) and that strict scrutiny is appropriate in this case.

UPDATE IV: Dave Hardy weighs in on Kolbe. He makes note of the dissent and the response from Judge Traxler to it.


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  2. The part of the news that everyone, even in gun-blog circles, is missing: a 2-1 decision means there's still one judge on the panel who flat-out rejects not only the clear wording of the Second Amendment, but also the equally clear wording of Heller and MacDonald.

    Tar. Feathers. Apply liberally.