When, Oh When, Will The SCOTUS Actually Defend The Second Amendment Again?

I am disappointed in the US Supreme Court. That’s nothing new for either me or most people regardless of their political leanings.

My disappointment stems from the absolute refusal by the Court to hear any and all Second Amendment cases since 2010 when they ruled in McDonald v. Chicago. The latest case to bite the dust is the Maryland case of Kolbe et al v. Hogan et al which challenged that state’s ban on ARs, AKs, and standard capacity magazines.

From the Orders released today:


The motion of Edwin Vieira, Jr., et al. for leave to file a
brief as amici curiae is granted. The petition for a writ of
certiorari is denied.

This case was a loss at the District Court level with an absolutely ridiculous opinion by Judge Catherine C. Blake which was then followed by a 2-1 win in the 4th Circuit that got overturned by an en banc ruling affirming the District Court.

If it is true that President Trump will have the ability to appoint up to 40% of the Federal bench with conservative judges, it can’t come soon enough. Moreover, I hope they aren’t in the mold of Judge Harvey Wilkinson either.

Ted Cruz Responds To The 4th Circuit Ruling

CPAC or the Conservative Political Action Conference is going on now in Washington, DC. It is where the leading lights of the conservative movement show up to see and be seen. Sen. Ted Cruz (R-TX) is one of those people.

In an interview with radio talk show host and author Mark Levin, Cruz discussed the fallacies of the majority opinion in Kolbe v. Hogan. He eviscerated the logic (or illogic) shown by Judge Robert King in the majority opinion.

Watch and listen:

Comment Of The Day

The comment of the day comes from Jim Shepherd of the Outdoor Wires. He concludes his discussion of the 4th Circuit’s majority opinion in Kolbe v. Hogan with this:

But don’t forget, that if this silly ruling were to survive, it wouldn’t be much of a reach- at least for lawyers and legislators- to extend the withdrawal of protections to everything from bolt action rifles and pump shotguns (trench guns in World Wars I & II and Vietnam) to the venerable cowboy action lever guns carried by the U.S. Army in the 1800s.

Will this one head to the Supreme Court?

But with the District of Columbia and Chicago still thumbing their noses at the high court after rulings that should have repealed their oppressive anti-gun regulations, what real difference would it make?

When it comes to protecting the enumerated right defined in the Second Amendment, the United States Supreme Court isn’t just divided.

It’s toothless.

Why should any state or local official be concerned with the “supreme court” and its rulings if the court itself lacks the conviction to compel compliance?

Unenforced rules aren’t rules, they’re suggestions.

Jim is absolutely correct. The Supreme Court has had multiple opportunities to reinforce and correct misinterpretations of their rulings in Heller and McDonald. Every time they have blinked and let them go unchallenged.

Erin Palette was correct to call Supreme Court nominations “the Kardashians of politics”. By extension and given their reluctance to take another Second Amendment case, I’d call the justices themselves “the Kardashians of politics”.

The 4th Circuit Has Gone To Hell In A Handbasket!

The 4th Circuit Court of Appeals in its infinite wisdom has decided that the most common rifle in America in not entitled to the protection of the Second Amendment. Thank you President Obama for stacking this Court of Appeals with nitwits and halfwits given that seven of the 15 active judges (non-senior status) were his appointments.

The 4th Circuit issued an en banc decision in Kolbe et al v. Hogan et al which upheld the Maryland law that banned so-called assault weapons (sic) and standard capacity magazines. The case was decided in a 9-4 split with the majority opinion written by Judge Robert B. King, a Clinton appointee, and a native of West Virginia.

Using intermediate scrutiny, Judge King wrote:

Because the banned assault weapons and large-capacity
magazines are clearly most useful in military service, we are
compelled by Heller to recognize that those weapons and
magazines are not constitutionally protected. On that basis, we
affirm the district court’s award of summary judgment in favor
of the State with respect to the plaintiffs’ Second Amendment

Earlier he wrote:

Thankfully, however, we need not answer all those difficult
questions today, because Heller also presents us with a
dispositive and relatively easy inquiry: Are the banned assault
weapons and large-capacity magazines “like” “M-16 rifles,” i.e.,
“weapons that are most useful in military service,” and thus
outside the ambit of the Second Amendment?
See 554 U.S. at 627.
The answer to that dispositive and relatively easy inquiry is
plainly in the affirmative.

Simply put, AR-15-type rifles are “like” M16 rifles under
any standard definition of that term.
See, e.g., Webster’s New
International Dictionary 1431 (2d ed. 1948) (defining “like” as
“[h]aving the same, or nearly the same, appearance, qualities,
or characteristics; similar”); The New Oxford American
Dictionary 982 (2d ed. 2005) (defining “like” as “having the
same characteristics or qualities as; similar to”). Although an
M16 rifle is capable of fully automatic fire and the AR-15 is
limited to semiautomatic fire, their rates of fire (two seconds
and as little as five seconds, respectively, to empty a thirtyround
magazine) are nearly identical. Moreover, in many
situations, the semiautomatic fire of an AR-15 is more accurate
and lethal than the automatic fire of an M16. Otherwise, the
AR-15 shares the military features — the very qualities and
characteristics — that make the M16 a devastating and lethal
weapon of war.

To quote the philosopher Forrest Gump, “I may not be a smart man” but that is utter bullshit! The opinion, concurrences, and dissents go on for 116 pages. I just can’t bring myself to read the whole thing tonight I’m so pissed off.

 The Wall Street Journal opines that this case will go to the Supreme Court. If so, it is time to get Judge Gorsuch on the court as Associate Justice Gorsuch. Moreover, it is time to start using the nomination process to appoint judges who are originalists and not some flim-flam men and women who misinterpret the plain words of Justice Scalia in the Heller decision.

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.

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.

NSSF Responds To The 4th Circuit Ruling

The National Shooting Sports Foundation was an organizational plaintiff in Kolbe v. Hogan. As you can imagine they are very pleased with the 4th Circuit Court of Appeals’ ruling that the District Court erred in going with intermediate scrutiny and not strict scrutiny.

Appeals Court Remands Decision for ‘Strict Scrutiny’ of Second Amendment

NEWTOWN, Conn. — The U.S. Court of Appeals for the Fourth Circuit today overturned a federal district court decision that had upheld the 2013 State of Maryland Firearm Safety Act as constitutional under intermediate scrutiny review.

Writing for the three-judge appellate court panel that heard the case, Kolbe v. Maryland, Chief Judge William B. Traxler wrote: “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 or review for Plaintiffs’ Second Amendment claim.”

The court vacated the district court’s denial of the plaintiffs’ claims and remanded the case to the lower court, ordering that it apply the appropriate strict standard of review.

“We are greatly heartened by the Fourth Circuit panel’s ruling today,” said Lawrence G. Keane, Senior Vice President and General Counsel, National Shooting Sports Foundation (NSSF), one of the lead plaintiffs in this case. “As this important case goes forward, NSSF will continue to work with our co-plaintiffs to ensure that our citizens’ Second Amendment rights are protected and that the lawful commerce in firearms is restored in support of this constitutional protection.”

The NRA Responds To Today’s 4th Circuit Decision

The NRA is very pleased with the 2-1 ruling in the 4th Circuit Court of Appeals in the case of Kolbe v. Hogan.

National Rifle Association Statement on 4th Circuit Court of Appeals Ruling in Kolbe v. Maryland

Fairfax, Va.— Chris W. Cox, the executive director of the National Rifle Association’s Institute for Legislative Action, issued the following statement in reaction to today’s ruling by the federal 4th Circuit Court of Appeals in the Kolbe v. Maryland case. The case challenges the legality of Maryland’s 2013 ban on so-called assault weapons and high-capacity magazines. The 2-1 decision sends the gun-control law back to a lower court for review because it “implicates the core protection of the Second Amendment.”

“The Fourth Circuit’s ruling is an important victory for the Second Amendment. Maryland’s ban on commonly owned firearms and magazines clearly violates our fundamental, individual right to keep and bear arms for self-defense. The highest level of judicial scrutiny should apply when governments try to restrict our Second Amendment freedoms.” – Chris W. Cox, executive director of the NRA’s Institute for Legislative Action

You can find my earlier post on the case here.