A divided Fourth Circuit Court of Appeals has just upheld the Maryland law banning certain rifles and magazines, in the matter of Kolbe v. Hogan.
The case centered on the Maryland Firearm Safety Act of 2013 (FSA), passed in the panic following the attack on the Sandy Hook elementary school. The law banned the possession of certain semiautomatic center fire rifles and pistols that it refers to as “assault weapons” as well as detachable magazines that have a capacity of more than ten rounds of ammunition. The law had been challenged by a bevy of plaintiffs arguing violation of the right to keep and bear arms protected by the Second Amendment and incorporated to the several states via the Fourteenth.
Last year, a three judge panel of Fourth Circuit held that strict scrutiny should apply when considering whether or not the act violated the protections afforded by the Bill of Rights. It’s not surprising that the full Fourth Circuit decided to hear the case en banc, given that this was a matter of first impression, (and, I note, some other Circuits have effectively been applying the lower review standard of intermediate scrutiny on Second Amendment issues.)
The Court’s decision had a bit of a vengeful tone from the start, where the court spilled a bit of ink emotionally justifying its decision by talking about the Sandy Hook attack and others. It then vacated the earlier decision, stating that intermediate scrutiny was the appropriate level of review, and then explicitly holding that the rifles and magazines identified in the FSA were outside the protection of the Second Amendment. In fact, it held so because they were “most useful in military service.”
We conclude…that 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. See 554 U.S. at 627 (rejecting the notion that the Second Amendment safeguards “M-16 rifles and the like”). 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. Nevertheless, we also find it prudent to rule that — even if the banned assault weapons and large-capacity magazines are somehow entitled to Second Amendment protection — the district court properly subjected the FSA to intermediate scrutiny and correctly upheld it as constitutional under that standard of review.
Ah, yes, Heller. I went to the source, because at this point in the #fakenews cycle, I don’t take anyone’s word on anything. Alas, they’re right. Here’s what the late Justice Scalia had to say:
We also recognize another important limitation on the right to keep and carry arms…. [T]he sorts of weapons protected were those “in common use at the time.” We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of “dangerous and unusual weapons….”
It may be objected that if weapons that are most useful in military service—M-16 rifles and the like—may be banned, then the Second Amendment right is completely detached from the prefatory clause. But as we have said, the conception of the militia at the time of the Second Amendment ’s ratification was the body of all citizens capable of military service, who would bring the sorts of lawful weapons that they possessed at home to militia duty. It may well be true today that a militia, to be as effective as militias in the 18th century, would require sophisticated arms that are highly unusual in society at large. Indeed, it may be true that no amount of small arms could be useful against modern-day bombers and tanks. But the fact that modern developments have limited the degree of fit between the prefatory clause and the protected right cannot change our interpretation of the right.
It sure looks like the Fourth Circuit used the (non-precedential) dicta in Heller to help hang their hat in this decision.
That said, there was a vigorous dissent here by Judge Traxler, and the majority was aghast at the notion of extending “Second Amendment protection to each and every weapon deemed sufficiently popular — no matter how violent or dangerous that weapon is.” I’ve not had a chance to review the case and consider its implications fully yet (that will come later,) but I will conclude with this bit from the numerous dissenting judges:
For a law-abiding citizen who, for whatever reason, chooses to protect his home with a semi-automatic rifle instead of a semi-automatic handgun, Maryland’s law clearly imposes a significant burden on the exercise of the right to arm oneself at home, and it should at least be subjected to strict scrutiny review before it is allowed to stand.