Kolbe v. Hogan: 4th Circuit requires strict scrutiny for Maryland ban on magazines and semiautomatic

[Sgent]

Today the 4th Circuit decided Kolbe v. Hogan, a Second Amendment challenge to a 2013 Maryland arms prohibition statute. The statute bans the sale of firearm magazines that hold more than 10 rounds and also bans many firearms, by labeling them as “assault weapons.” In a 2-1 decision written by Chief Judge Traxler, the Fourth Circuit held that strict scrutiny is the proper standard of review for bans on common arms, such as those at issue in Kolbe. The case was remanded to the district court, which had applied the wrong standard, namely a weak version of intermediate scrutiny. The Maryland attorney general announced that he will seek en banc or Supreme Court reversal of the Kolbe decision. Below is a summary of the most important parts of the Kolbe decision.

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First, because the prohibition “burdens the availability and use of a class of arms for self-defense in the home, where the protection afforded by the Second Amendment is at its greatest.”

Second, because the burden is substantial, “not merely incidental.” For example, the statute imposes “a complete ban” on “AR-15 style rifles—the most popular class of centerfire semi-automatic rifles in the United States.” Notably, the ban “also reaches every instance where an AR-15 platform semi-automatic rifle or LCM [large capacity magazine] might be preferable to handguns or bolt-action rifles–for example hunting, recreational shooting, or competitive marksmanship events, all of which are lawful purposes protected by the Constitution.”

Strict scrutiny was also appropriate for the magazine ban, because “a citizen’s ability to defend himself and his home is enhanced with an LCM.” For example, the inherent difficulties of some defense situations mean that citizens often need the ability to fire multiple shots, and changing magazines while under violent attack may not be possible.

https://www.washingtonpost.com/news/volokh-conspiracy/wp/2016/02/04/kolbe-v-hogan-4th-circuit-requires-strict-scrutiny-for-maryland-ban-on-magazines-and-semiautomatics/

[NutmegYankee]

1. This may set up another SCOTUS case. The 2nd Circuit made the opposite decision.

[Sgent]

2. I don't generally

agree with everything written by Volokh, but they have fairly thorough legal analysis and good comments.

[Amishman]

3. the lower court ruling was not well thought out

there are other legal grounds to support the law, but the lower court seemed to use the claim that they are not in common use as their cornerstone. They are in common use, that is the whole reason for wanting the law!

[beevul]

7. You're being kind.

The appeals court used words like "frivolous".

Reading the decision was like reading a rehash of anti-gun talking points knocked down one after another.

[beevul]

4. Strict scrutiny is coming.

And not soon enough. It was only a matter of time, and motivation. Getting stupid about gun laws gives people enough motivation to make the time to fight this idiocy.

Good riddance to bad rubbish, such as so called "assault weapon ban" type legislation.

Some quotes from the Decision:

Lawful Purposes Plaintiffs Kolbe and Turner both seek to acquire and keep semi-automatic rifles, equipped with LCMs, in their homes primarily for self-defense. And, they proffered evidence suggesting that they are not alone in this regard. For example, Plaintiffs’ expert James Curcuruto presented survey evidence showing that self-defense was a primary reason for the purchase of weapons banned under the FSA, and a 1989 Report from the Bureau of Alcohol, Tobacco, and Firearms indicated that self-defense was a suitable purpose for semi-automatic rifles. The State’s expert Daniel Webster even agreed that it is reasonable to assume that a purpose for keeping one of the prohibited weapons is self-defense in the home.

The State argues that even if ownership of the prohibited weapons and magazines is common, nothing in the record reflects that these weapons are commonly used for self-defense. More specifically, the State’s position is premised on Plaintiffs’ lack of evidence that the banned semi-automatic rifles have ever actually been used in self-defense in Maryland, as opposed to being possessed for self-defense. The State’s position flows from a hyper-technical, out-of-context parsing of the Supreme Court’s statement in Heller “that the sorts of weapons protected were those in common use at the time.” Heller, 554 U.S. at 627 (emphasis added; internal quotation marks omitted). The State misreads Heller, as Second Amendment rights do not depend on how often the semi-automatic rifles or regulated magazines are actually used to repel an intruder.

For perspective, we note that in 2012, the number of AR- and AK-style weapons manufactured and imported into the United States was more than double the number of Ford F-150 trucks sold, the most commonly sold vehicle in the United States.

Likewise, the record in this case shows unequivocally that LCMs are commonly kept by American citizens, as there are more than 75 million such magazines in circulation in the United States. In fact, these magazines are so common that they are standard.

In addition, we reject the State’s argument that the Second Amendment does not apply to detachable magazines because magazines are not firearms—that is, detachable magazines do not constitute “bearable” arms that are expressly protected by the Second Amendment. See U.S. Const. amend. II. By Maryland’s logic, the government can circumvent Heller, which established that the State cannot ban handguns kept in the home for self-defense, simply by prohibiting possession of individual components of a handgun, such as the firing pin.

Obviously, magazines and the rounds they contain are used to strike at another and inflict damage. Early American provisions protecting the right to “arms” were also crafted partly in response to British measures that, while not taking away guns entirely, drastically impaired their utility -- suggesting “arms” should be read to protect all those items necessary to use the weapons effectively.

The proper standard under Heller is whether the prohibited weapons and magazines are “typically possessed by law-abiding citizens for lawful purposes” as a matter of history and tradition, id. at 625 (emphasis added), not whether the magazines are often actually employed in self-defense incidents. Actual use in self-defense is a poor measure of whether a particular firearm is “typically possessed by law-abiding citizens” for self-defense, as it is unlikely most people will ever need to actually discharge a firearm in self-defense. See Fyock, 25 F. Supp. 3d at 1276 (“The fact that few people will require a particular firearm to effectively defend themselves should be celebrated and not seen as a reason to except from Second Amendment protection. Evidence that such magazines are typically possessed by law-abiding citizens for lawful purposes is enough.”). More importantly, it is the government’s burden to establish that a particular weapon or activity falls outside the scope of the Second Amendment right. See Ezell, 651 F.3d at 702-03 (“If the government can establish that a challenged firearms law regulates activity falling outside the scope of the Second Amendment right as it was understood at the relevant historical as we can tell, nothing in the record suggests any such tradition with respect to semi-automatic rifles or LCMs. In fact, the Supreme Court, in a pre-Heller decision, hinted at the opposite, stating that “certain categories of guns,” such as “machineguns, sawed-off shotguns, and artillery pieces,” have a “quasi-suspect character,” but that “guns falling outside those categories traditionally have been widely accepted as lawful possessions.”


Heller reiterated that “the Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes, such as short-barreled shotguns.” We find nothing moment—1791 or 1868—then the analysis can stop there.”). So far in the record demonstrating that law-abiding citizens have been historically prohibited from possessing semi-automatic rifles and LCMs. (“utside of weapons deemed dangerous or unusual, there is no historical tradition supporting wholesale prohibitions of entire classes of weapons.”). In fact, semi-automatic firearms have been in use by the civilian population for more than a century. “Initially called ‘self-loading’ or ‘auto-loading’ firearms,” , semi-automatic weapons with detachable magazines started to see significant advancements in the late 1800s. In 1893, the “Brochardt semi-auto pistol” was developed for the civilian market. J.A. 2255. In 1905, Winchester produced a semi-automatic rifle, equipped with either a five- or ten-round detachable magazine. And, in 1963, Colt produced the SP-1 semi-automatic rifle with a 20-round detachable magazine, later known as the AR-15, a semi-automatic counterpart to the fully automatic M-16. There is no record evidence or historical documentation that these weapons were at all prohibited until relatively recently.

Dangerous and Unusual Weapons

Finally, the State argues that the banned semi-automatic rifles are “unusually dangerous” and therefore do not fall within the ambit of the Second Amendment. Heller makes clear that “dangerous and unusual” weapons are not “weapons typically possessed by law-abiding citizens for lawful purposes” that have some degree of Second Amendment protection. But because all firearms are dangerous by definition, the State reasons that Heller must mean firearms that are “unusually dangerous” fall altogether outside of the scope of the Second Amendment. The State views the banned guns and LCMs as “unusually dangerous,” rendering the Second Amendment inapplicable to the ban.

The State’s novel “unusually dangerous” standard reads too much into Heller. As best we can tell, no statute or case has mentioned, much less adopted, the State’s newly proffered standard.

In distinguishing between protected and unprotected weapons, Heller focused on whether the weapons were typically or commonly possessed, not whether they reached or exceeded some undefined level of dangerousness. Hand grenades, sawed-off shotguns and fully automatic “M-16 rifles and the like,” are unusual weapons that fall outside of the Second Amendment because they are not in common use or typically possessed by the citizenry, see id.; Fincher, 538 F.3d at 874 (“Machine guns are not in common use by law-abiding citizens for lawful purposes and therefore fall within the category of dangerous and unusual weapons that the government can prohibit for individual use.”).

Nothing in Heller suggests that courts considering a Second Amendment challenge must decide whether a weapon is “unusually dangerous.” Moreover, the difficulties that would arise fromthe application of such a standard are fairly apparent. How is a court to determine which weapons are too dangerous to implicate the Second Amendment? The district court believed that semi-automatic rifles with LCMs are too dangerous based on evidence that they unleash greater destructive force than other firearms and appear to be disproportionately connected to mass shootings. But if the proper judicial standard is to go by total murders committed, then handguns should be considered far more dangerous than semi-automatic rifles. “Most murders in America are committed with handguns. No other weapon is used nearly as often. During 2006, handguns were used in 60%of all murders while long guns . . . were used only in 7%.” Carl T. Bogus, Gun Control & America’s Cities: Public Policy & Politics, 1 Alb. Gov’t L. Rev. 440, 447 (2008) (footnote omitted). And, the use of handguns in the number of overall homicides is out of proportion to the ownership of handguns. See id. at 447 (“mong the 192 million guns in America only 35%are handguns. andguns are used in 88%of all firearm murders.”

Yet Heller has established that handguns are constitutionally protected and therefore cannot be too dangerous for Second Amendment purposes. Furthermore, Heller refers to “dangerous” and “unusual” conjunctively, suggesting that even a dangerous weapon may enjoy constitutional protection if it is widely employed for lawful purposes, i.e., not unusual. Founding era understandings of what it means for something to be “unusual” reflect that the firearmmust be rare to be considered “unusual.” See Samuel Johnson, A Dictionary of the English Language 717 (1768) (defining “unusual” as “not common: not frequent: rare”); Bailey, supra, at 641 (defining “unusualness” as “rareness, and uncommonness”); accord Peruta v. Cnty. of San Diego, 742 F.3d 1144, 1154 (9th Cir. 2014) (suggesting that laws applicable to “dangerous and unusual” weapons were “understood to cover carriage of uncommon, frightening weapons only”).

In re Wheeler, 81 A.3d 728, 750 (N.J. App. Div. 2013) (“he protection was not understood to extend to the keeping, carrying or using of weapons that were deemed dangerous or unusual, in the sense that they were not typically used by the law-abiding and responsible for lawful purposes.”). Indeed, it was only a dissent in Heller that focused on dangerousness alone. See Heller, 554 U.S. at 711 (Breyer, J., dissenting). Thus, the State’s “unusually dangerous” argument is of no avail.

B. Appropriate Level of Scrutiny

Having determined that the Second Amendment covers the prohibited semi-automatic rifles, we next consider whether the district court erred in applying intermediate scrutiny. We first consider which of the two relevant standards of scrutiny (strict or intermediate scrutiny) should apply.

The strict-scrutiny standard requires the government to prove its restriction is “narrowly tailored to achieve a compelling governmental interest.” Abrams v. Johnson, 521 U.S. 74, 82 (1997); see Citizens United v. Federal Election Comm’n, 558 U.S. 310, 340 (2010) (explaining strict scrutiny “requires the Government to prove that the restriction furthers a compelling interest and is narrowly tailored to achieve that interest” (internal quotation marks omitted)). To be narrowly tailored, the law must employ the least restrictive means to achieve the compelling government interest. See United States v. Playboy Entertainment Group, Inc., 529 U.S. 803, 813 (2000). Conversely, intermediate scrutiny requires the government to “demonstrate . . . that there is a reasonable fit between the challenged regulation and a substantial government objective.” Chester, 628 F.3d at 683. For several reasons, we find that the Act’s firearms and magazine bans require strict scrutiny.


In Chester, we adopted a First-Amendment-like approach to determining the appropriate level of scrutiny to apply to any given Second Amendment challenge. To select the proper level of scrutiny, we consider “the nature of the conduct being regulated and the degree to which the challenged law burdens the right.” 628 F.3d at 682. “A less severe regulation -- a regulation that does not encroach on the core of the Second Amendment -- requires a less demanding means-ends showing.” Nat’l Rifle Ass’n of Am., Inc. v. Bureau of Alcohol, Tobacco & Firearms, 700 F.3d 185, 195 (5th Cir. 2012); see also United States v. Huitron-Guizar, 678 F.3d 1164, 1166 (10th Cir. 2012) (“The right to bear arms, however venerable, is qualified by what one might call the ‘who,’ ‘what,’ ‘where,’ ‘when,’ and ‘why.’”). First, the FSA’s ban on semi-automatic rifles and larger-capacity magazines burdens the availability and use of a class of arms for self-defense in the home, where the protection afforded by the Second Amendment is at its greatest. It implicates the “core” of the Second Amendment: “the right of law-abiding, responsible citizens to use arms in defense of hearth and home.” Heller, 554 U.S. at 634, 635; see Kachalsky v. County of Westchester, 701 F.3d 81, 89 (2d Cir. 2012) (“What we know from is that Second Amendment guarantees are at their zenith within the home.”). At stake here is a “basic right,” McDonald, 561 U.S. at 767, “that the Framers and ratifiers of the Fourteenth Amendment counted . . . among those fundamental rights necessary to our systemof ordered liberty,” id. at 778. Indeed, “he Court went to great lengths to emphasize the special place that the home—an individual's private property—occupies in our society.” GeorgiaCarry.Org, Inc. v. Georgia, 687 F.3d 1244, 1259 (11th Cir. 2012).

Second, we conclude that the challenged provisions of the FSA substantially burden this fundamental right. The burden imposed in this case is not merely incidental. Maryland law imposes a complete ban on the possession by law-abiding citizens of AR-15 style rifles—the most popular class of centerfire semi-automatic rifles in the United States. As we explained in Section III.A., these weapons are protected under the Second Amendment. We therefore struggle to see how Maryland’s law would not substantially burden the core Second Amendment right to defend oneself and one’s family in the home with a firearmthat is commonly possessed by law-abiding citizens for such lawful purposes. Moreover, the FSA also reaches every instance where an AR-15 platformsemi-automatic rifle or LCMmight be preferable to handguns or bolt-action rifles--for example hunting, recreational shooting, or competitive marksmanship events, all of which are lawful purposes protected by the Constitution. See Friedman v. City of Highland Park, 136 S. Ct. 447 (Mem.) (December 7, 2015) (Thomas, J., dissenting fromthe denial of cert.) (“he ordinance criminalizes modern sporting rifles (e.g., AR-style semiautomatic rifles), which many Americans own for lawful purposes like self-defense, hunting, and target shooting.”). Thus, the FSA completely prohibits, not just regulates, an entire category of weaponry.

As Judge Kavanaugh noted in dissent in Heller II, prohibiting this group of weapons might be “equivalent to a ban on a category of speech.”

Contrary to the district court’s conclusion, the fact that handguns, bolt-action and other manually-loaded long guns, and, as noted earlier, a few semi-automatic rifles are still available for self-defense does not mitigate this burden.

Indeed, the Supreme Court rejected essentially the same argument in Heller—that the District of Columbia’s handgun ban did not unconstitutionally burden the right to self-defense because the law permitted the possession of long guns for home defense. See Heller, 554 U.S. at 629 (“It is no answer to say, as petitioners do, that it is permissible to ban the possession of handguns so long as the possession of other firearms (i.e. long guns) is allowed.”); accord Parker v. District of Columbia, 478 F.3d 370, 400 (D.C. Cir. 2007) (rejecting the District’s argument that alternative weapons rendered handgun ban lawful, calling it “frivolous,” and noting that “it could be similarly contended that all firearms may be banned so long as sabers were permitted”); cf. Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 556 (1975) (“ne is not to have the exercise of liberty of expression in appropriate places abridged on the plea that it may be exercised in some other place.”).

A semi-automatic rifle may not be “the quintessential self-defense weapon,” as Heller described the handgun, 554 U.S. at 629; nonetheless, as we explained previously, AR-15s and the like are commonly possessed by law-abiding citizens for self-defense and other lawful purposes and are protected under the Second Amendment. There are legitimate reasons for citizens to favor a semi-automatic rifle over handguns in defending themselves and their families at home. The record contains evidence suggesting that “handguns are inherently less accurate than long guns” as they “are more difficult to steady” and “absorb less of the recoil reducing accuracy.” J.A. 2131. This might be an important consideration for a typical homeowner, who “under the extreme duress of an armed and advancing attacker is likely to fire at, but miss, his or her target.” J.A. 2123. “Nervousness and anxiety, lighting conditions, the presence of physical obstacles . . . and the mechanics of retreat are all factors which contribute to likelihood” that the homeowner will shoot at but miss a home invader. J.A. 2123. These factors could also affect an individual’s ability to reload a firearmquickly during a home invasion. Similarly, a citizen’s ability to defend himself and his home is enhanced with an LCM.

In sum, 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, or possesses an LCMfor use in firearms kept in the home, the FSA significantly burdens the exercise of the right to armoneself at home. “The right to self-defense is largely meaningless if it does not include the right to choose the most effective means of defending oneself.”

(“The ultimate decision for what constitutes the most effective means of defending one’s home, family, and property resides in individual citizens and not the government. . . . The extent of danger—real or imagined—that a citizen faces at home is a matter only that person can assess in full.”) The FSA “restrict the right[] of citizens to select the means by which they defend their homes and families.”

As we have noted on previous occasions, “any law that would burden the ‘fundamental,’ core right of self-defense in the home by a law-abiding citizen would be subject to strict scrutiny. But, as we move outside the home, firearm rights have always been more limited.” United States v. Masciandaro, 638 F.3d 458, 470 (4th Cir. 2011). “his longstanding out-of-the-home/in-the-home distinction bears directly on the level of scrutiny applicable,” id., with strict scrutiny applying to laws restricting the right to self-defense in the home, see Woollard v. Gallagher, 712 F.3d 865, 878 (4th Cir. 2013) (observing that restrictions on “the right to arm oneself at home” necessitates the application of strict scrutiny). Strict scrutiny, then, is the appropriate level of scrutiny to apply to the ban of semi-automatic rifles and magazines holding more than 10 rounds.

We recognize that other courts have reached different outcomes when assessing similar bans, but we ultimately find those decisions unconvincing. The Seventh Circuit, for instance, recently upheld a ban on “assault weapons” and LCMs by dispensing with levels of scrutiny entirely. See Friedman, 784 F.3d at 410. Instead, that court conjured its own test, asking “whether a regulation bans weapons that were common at the time of ratification or those that have some reasonable relationship to the preservation or efficiency of a well regulated militia, and whether law-abiding citizens retain adequate means of self-defense.” Id. (internal quotation marks and citations omitted). The Seventh Circuit’s approach cannot be reconciled with Heller, which looked to present-day use to assess whether handguns are in common use (and consequently protected). See 554 U.S. at 629; see also id. at 582 (“Some have made the argument, bordering on the frivolous, that only those arms in existence in the 18th century are protected by the Second Amendment.” (emphasis added)). Friedman, on the other hand, ignores the Supreme Court’s specification of present-day focus and asks instead whether certain features of the weapons in question were common at the time of the Founding, effectively elevating a Heller dissent to constitutional canon. Compare Friedman, 784 F.3d at 408-09 (suggesting that present day common use cannot be the relevant test because machine guns were in common use when they were federally banned in 1934 and are now uncommon because of the ban), with Heller, 554 U.S. at 720-21 (Breyer, J., dissenting) (same).

Friedman’s problems stretch beyond its direct contradiction of Heller. For instance, the Friedman opinion defines the scope of the Second Amendment right by reference to militias -- but it then declares that states, “which are in charge of militias,” should determine what weapons are rightfully held for militia-related purposes. Friedman, 784 F.3d at 410-11. That course effectively permits states to opt-out of the Second Amendment. But see McDonald, 561 U.S. at 750 (“he Second Amendment right is fully applicable to states.”). Friedman also concludes that the “dangerousness” of the regulated weapons should not be decisive, Friedman, 784 F.3d at 409, but nevertheless dismisses the self-defense-related benefits of those same weapons because they “can fire more shots, faster, and thus can be more dangerous in aggregate,” id. at 411.

And it recognizes that the restriction must be supported by some genuine state interest, but then finds such an interest in the fact that bans might “reduce[] the perceived risk from a mass shooting.” Id. at 412 (emphasis added). In other words, under the Seventh Circuit’s view, a significant restriction on a fundamental right might be justified by benefits that are quite literally imagined into existence. Needless to say, we see much to question in the Seventh Circuit’s decision.

Whatever may be said about the bans at issue in Fyock and Heller II, it should be obvious by this point that we view Maryland’s ban quite differently. A wholesale ban on an entire class of common firearms is much closer to the total handgun ban at issue in Heller than more incidental restrictions that might be properly subject to intermediate scrutiny. The law here “goes beyond mere regulation” and is instead “a total prohibition of possession of certain types of arms.”

In this way, Maryland’s outright ban on LCMs and “assault weapons” is akin to a law that “foreclose an entire mediumof expression.” City of Ladue v. Gilleo, 512 U.S. 43, 55 (1994). Such laws receive exceptionally rigorous review in the analogous context of the First Amendment, id., and we see no reason for a different method here.

Because the district court did not evaluate the challenged provisions of the FSA under the proper standard of strict scrutiny, and the State did not develop the evidence or arguments required to support the FSA under the proper standard, we vacate the district court’s order as to Plaintiffs’ Second Amendment challenge and remand for the court to apply strict scrutiny in the first instance.

Our distinguished dissenting colleague asserts that we have imprudently and unnecessarily broken with our sister courts of appeal and infers that we will bear some responsibility for future mass shootings. In our view, inferences of this nature have no place in judicial opinions and we will not respond beyond noting this. 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 set out in Heller and Chester.

To sumup, the panel vacates the district court’s summary judgment order on Plaintiffs’ Second Amendment claims and remands for the district court to apply strict scrutiny.

https://www.scribd.com/fullscreen/297998206?access_key=key-cy83F0QHe2dsNdtkutMm&allow_share=true&escape=false&view_mode=scroll

I would genuinely like to hear any counterarguments to any of the above, but "I hate guns" and "nra talking points" and "compensating" don't count.

[Kang Colby]

5. K&R...

[appal_jack]

6. Good decision. k&r, nt

[virginia mountainman]

8. Bump

[beevul]

9. I don't get it.

Where is everyone?

[Lurks Often]

10. No kidding, the silence is overwhelming

[virginia mountainman]

11. Bloomberg's check did not clear?

Or something like that I bet..

[branford]

12. They're trying to find out what happened to the "tipping point." nt

[Lee-Lee]

13. This ruling shows why anti gun folks are usually their own worst enemy

They propose and write legislation largely from a point of ignorance. Not stupidly now, but ignorance about the subject. Because they don't actually know about or understand guns, gun laws, etc.

That is why you get them always floating ideas that won't work like mandatory insurnace, and why you get them still often pushing for ideas that have been proven failures like ballistic fingerprinting, and why you get them writing and getting passed laws like this that are based on cosmetic features and wishes of what they can do, when there is not statistical proof or validation to the idea behind the legislation. Then, when challenged in court they can't defend the law well because it was written from a point of ignorance about the subject and when the court demands they defend it they can't.

And that will always be a problem- because when people take time to learn the real facts they don't support legislation like this- leaving the writing and support of bills like this to the ignorant.