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.

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.”