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The Legal Brief Ep. 31 – 4th Circuit Says Second Amendment DOES NOT Protect America’s Rifle
Welcome back to The Legal Brief, the show where we CRUSH the various legal myths and misinformation surrounding various areas of the gun world. I’m your host Adam Kraut and today we are discussing the recent decision from the 4th Circuit that found America’s Rifle is not protected by the Second Amendment.
Recently the 4th Circuit issued a very unwelcome decision en banc in Kolbe v. Hogan which proclaimed that “assault weapons” and “large capacity” magazines are not protected by the Second Amendment, a determination that has the gun community up in arms. A few points of order before we talk about the decision itself.
For those that don’t know, en banc is when the Court sits as a whole to hear a case. In this instance, it was heard before 14 judges rather than the typical 3 judge panel. In order for a court to hear a case en banc it can either do so on its own or a party can petition the court for a rehearing. The other point is that the Fourth Circuit covers Maryland, West Virginia, Virginia, North Carolina and South Carolina.
So if you live in a state such as Wisconsin, Maine or Texas, this decision does not directly affect you.
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, as well as bringing a Fourteenth Amendment Due Process and Equal Protection claim. For the purposes of our discussion, we will only cover the Second Amendment aspect.
At the District Court, the judge ruled that the FSA was constitutional. While analyzing the Second Amendment claims, the Court expressed doubt that “assault weapons” and “large capacity magazines” were protected by the Second Amendment. In its decision the Court employed an intermediate scrutiny analysis.
When a court employs an intermediate scrutiny analysis, it looks to see whether the challenged law furthers an important government interest by means that are substantially related to that interest. In this instance, the District 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. Intermediate scrutiny does not require that the manner in which that interest is furthered be the least burdensome. The Court looked at evidence presented by the parties as to the capabilities of certain firearms, etc. to arrive at this conclusion. The decision is in the description if you want to read it.
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. Again, quick lesson for those that don’t know, under a strict scrutiny analysis, the law must further a compelling governmental interest and must have been narrowly tailored to achieve that interest. Simply put, the law must be written in the least restrictive means possible in order to further a compelling governmental interest.
As you may have guessed, the three judge panel kicked it back to the District Court to decide the case in accordance with the panel’s decision, that is until the hearing en banc was granted. And before all of you give up hope in the federal judiciary, I think you’ll appreciate this brief excerpt from the decision.
“The meaning of the Constitution does not depend on a popular vote of the circuits and it is neither improper nor imprudent for us to disagree with the other circuits addressing this issue. We are not a rubber stamp. We require strict scrutiny here not because it aligns with our personal policy preferences but because we believe it is compelled by the law…”
Unfortunately, what would have been a welcomed difference in opinion between the circuit courts was overruled when the case was reheard en banc. It was all too happy to reaffirm the District Court’s opinion in part. However, unlike the District Court, it made an explicit statement, that has gun owners very upset.
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.” It further stated that the appropriate level of scrutiny to apply to such a challenge was intermediate scrutiny. In other words, the Court believes that the Second Amendment does not warrant the highest level of protection when analyzing a challenge to the constitutionality of a law it may infringe upon.
Many people have been asking “how will this affect me”? Remember at the beginning where I listed the states the 4th Circuit covers? This decision is only binding on lower federal courts in those states. Unfortunately, that means if a law restricting certain types of firearms is passed in any of those states and someone brings a challenge to the constitutionality of it under the Second Amendment, it has now opened the door for restrictions on what firearms the Second Amendment protects. If you reside in a different state, no courts are bound by the decision. However, they can cite to it as persuasive authority, which is problematic, especially if other courts begin to adopt the perverted logic employed by the 4th Circuit.
When we were reviewing the script for this episode, Jon asked me how we could fight such a terrible decision. The fact of the matter is, there isn’t really any way to do so, short of contacting your congressional representatives. As you probably know, we have a system of government that is designed to have checks and balances on one another. If you didn’t know that, don’t worry, I’ve included another School House Rock episode for you to enjoy.
As the judiciary is independent of the legislative branch and not directly elected, there are only two ways that this decision will be overturned. The first is if Congress takes action. The second is if the Supreme Court decides to hear an appeal. When a case is decided by the Court of Appeals, either party can petition the Supreme Court to grant a writ of certiorari to hear the case. The Supreme Court is under no obligation to hear this case. In fact, the Court receives about 7,000 requests to hear a case each year and only grants certiorari to about 100-150 of them. Time will tell if this is one of the cases that makes it to the Supreme Court or not.
Hopefully that gives you a better understanding of the recent decision from the 4th Circuit. If you guys liked this episode, you know what to do, hit that like button and share it around with your friends. Have a question you want answered on this show, head over to The Legal Brief section on theguncollective.com. Be sure to check out my website adamkraut.com for more information on my quest to serve YOU on the NRA Board of Directors.
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And as always thanks for watching!
Links for this episode:
- Kolbe v. Hogan (4th Cir. 2017) – http://www.ca4.uscourts.gov/Opinions/Published/141945A.P.pdf
- 4th Circuit Local Rule 35 En Banc – https://www.ca4.uscourts.gov/Rules/Rule35.html
- Intermediate Scrutiny – https://www.law.cornell.edu/wex/intermediate_scrutiny
- Kolbe v. O’Malley, 42 F. Supp. 3d 768 (D. Md. 2014) (The Original District Court Case) – https://lawofselfdefense.com/law_case/kolbe-v-omalley-42-f-supp-3d-768-d-md-2014/
- Strict Scrutiny – https://www.law.cornell.edu/wex/strict_scrutiny
- Kolbe v. O’Malley, 813 F.3d 160 (4th Cir. 2016) (3 Judge Panel Decision) – http://blogs.reuters.com/alison-frankel/files/2016/06/Kolbe-v-Hogan.pdf
- Supreme Court Writ of Certiorari – http://www.uscourts.gov/about-federal-courts/educational-resources/about-educational-outreach/activity-resources/supreme-1
- School House Rock Three Branches of Government – https://www.youtube.com/watch?v=-EISWIY9bG8