Friday, February 5, 2016

Maryland AG Reacts As Expected

Maryland Attorney General Brian Frosh (D-MD) served a combined 28 years in the Maryland House and Senate before being elected Attorney General. He says in his bio that, "He shepherded landmark legislation on gun safety", through the Maryland Senate. That legislation was the Maryland Firearm Safety Act which banned the sale of ARs. AKs, their clones, and standard capacity magazines.

Given that background, it is no surprise that he is not happy with the judges of the 4th Circuit after yesterday's ruling in Kolbe v. Hogan. As he states in the press release below, he intends to request an en banc review of the case or, failing to get that, he will appeal the case to the Supreme Court.
Baltimore, MD (Feb. 4, 2016) --Attorney General Brian E. Frosh issued the following statement on today's ruling by the U.S. Fourth Circuit Court of Appeals on the Maryland Firearm Safety Act:

"The Maryland Firearm Safety Act is a common-sense law designed to reduce gun violence and make our communities safer. It remains the law in Maryland.

The 2-1 decision handed down today by the Fourth Circuit Court of Appeals returns the case to the district court for further proceedings, and it also conflicts sharply with rulings of other federal appellate courts.

Those courts have uniformly upheld assault weapons bans and limits on large capacity magazines. Those courts have not imposed the standard of review adopted by the 2-judge majority today, but instead follow a standard that gives greater deference to the public safety and health concerns that led the legislature to enact this law. As a dissent by Judge King notes: 'There is sound reason to conclude that the Second Amendment affords no protection whatsoever to the assault rifles and shotguns, copycat weapons, and large-capacity detachable magazines that are banned by the State of Maryland.'

As Attorney General, I remain fully committed to defending Maryland's law, and to defending the courageous votes taken by the Maryland General Assembly so that we can continue to protect public safety and reduce the risk of deadly gun violence.

Rest assured, the Office of the Attorney General will seek further review of the majority decision, either by the full Fourth Circuit sitting en banc, or by the U.S. Supreme Court."
Those other circuits to whom he refers are the notoriously anti-gun 1st, 2nd, and 3rd. As a resident of the 4th Circuit I have been consistently disappointed in its rulings on the Second Amendment. I have long wished that they would start ruling more like the 7th Circuit but my wishes have not been granted. Starting with US v Masciandaro (2011) and continuing with their overturning of the District Court win in Woollard v. Gallagher (2013), the 4th Circuit has not sure much due respect for Second Amendment rights.

Of note is that dissent in Kolbe came from Judge Robert King, a Clinton appointee, who wrote the opinion in the Woollard case. You'd have thought a born, bred, and educated West (by God!) Virginian would have had more respect for the Second Amendment. Sadly, that is not the case.


  1. Since this case was initially decided via judicial fiat versus a trial, and the decision makes clear that there are still questions concerning both sides evidence, I doubt that either the en banc request or the SC appeal will do anything other than delay the actual trial. I, for one, am looking forward to how the gov't will try to twist their emotional plea into a logical argument that will meet the strict scrutiny standard...should be enjoyable reading.

    1. The lack of a trial was a feature. Both Plaintiff and the State agreed to forgo trial and get a rapid Summary Judgement from the judge, who offered that option so "you can get this up the appellate ladder as fast as possible."

      She was clear where she was going (following DC Circuit in Heller II) and also clear that she wasn't going to slow anything down. Her point was simple, "no matter what happens here one or both of you will appeal, right?"

      When both sides replied in the affirmative, she offered to just write up a fast decision - again, based on the DC Circuit's jurisprudence - and punt to the 4th Circuit for their guidance. Both sides offered thanks.

      Say what you want about her opinion, but she played it straight right from the very first hearing. No games and no BS. If this were any other judge in nearly any other District, we might still be waiting for her initial ruling. She didn't see it our way, but she was good enough to grease the skids for the next steps.

  2. Frosh has been an anti-gun hater as long as he's been in public office. I've meet the douche and I wanted to slap his smug sneering face. I met him when I lived in Elkton, MD right after I got out of the Navy in 2001

    1. Your point on Frosh is noted, but he is not a party to the case. He just represents the State.

      Governor Hogan is on the receiving end of this, and he could do any number of things right now. He could settle with the Plaintiffs and leave Frosh without a case to litigate.

      Hogan may be a Republican, but he is a Christie acolyte. And Hogan does not like the gun-rights community one bit.