STEPHEN V. KOLBE et al. v. LAWRENCE J. HOGAN, Jr.
US Court of Appeals for the Fourth Circuit (En Banc), King, Feb. 21, 2017,
Second Amendment- Assault weapons and large-capacity magazines are not protected by the Second Amendment
Overturning the panel opinion reviewed here
(Full join- King with Gregory, Wilkinson, Motz, Keenan, Wynn, Floyd, Thacker, and Harris)
(Join in part on 2A, Join on 14A- Diaz)(Concur in part, concur in 2A judgment, join 14A- Diaz – Would say that intermediate scrutiny was satisfied, no need to address whether 2A applies to assault weapons)
(Join in 14A- Niemeyer, Shedd, and Agee)
(Concur- Wilkinson with Wynn – Legislators should decide what weapons are “common”)
(Dissent on 2A- Traxler with Niemeyer, Shedd, and Agee – the 2nd Amendment applies to assault weapons and strict scrutiny should be applied)
(Dissent on 14A, Concur in judgment- Traxler- Retired LEO are in the same class as those seeking assault rifles, agree “copycat” is not vague)
Facts
In the words of the Court:
“In response to Newtown and other mass shootings, the duly elected members of the General Assembly of Maryland saw fit to enact the State’s Firearm Safety Act of 2013 (the “FSA”).”
The FSA prohibited possession/transfer of assault weapons, transfer of magazines capable of holding more than 10 rounds, and defines “copycat” weapons.
The FSA also has an exception allowing retired law-enforcement to possess assault rifles and magazines purchased on retirement from their agency.
Kolbe and others challenged the entire FSA under the 2nd Amendment and also challenged the right of retired law-enforcement to possess assault rifles when others couldn’t. The US District Court for the State of Maryland upheld the FSA. On appeal, a panel of the Fourth Circuit struck down the FSA as a violation of the 2nd Amendment. The entire Fourth Circuit then met to reconsider the panel opinion.
Law from the Case
Held: Because the banned assault weapons and large-capacity magazines are “like” “M-16 rifles” — “weapons that are most useful in military service” — they are among those arms that the Second Amendment does not shield. Panel opinion is reversed.
2nd Amendment
2nd Amendment- In 2008, the Supreme Court held that the Second Amendment guarantees “the individual right to possess and carry weapons in case of confrontation.”
2nd Amendment- The most protected portion of the 2nd Amendment involves the right of law-abiding, responsible citizens to use arms in defense of hearth and home.
Type of Weapon- Not all weapons are protected under the 2nd Amendment. “[T]he Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes, such as short-barreled shotguns”
Type of Weapon- The Supreme Court has held that “dangerous and unusual weapons” are not protected by the 2nd Amendment. This includes “M-16 rifles and the like.”
Type of Weapon- The Court held that an “AR-15” is “like” an “M-16” because, like their fully automatic counterparts, the
banned assault weapons “are firearms designed for the battlefield, for the soldier to be able to shoot a large number of rounds across a battlefield at a high rate of speed.”
Equal Protection
14th Amendment- The “Equal Protection Clause” of the 14th Amendment prohibits a state from denying people equal protection under the law.
Equal Protection- To show that the government has violated the Equal Protection Clause, it must be shown that:
– They were treated differently from others with whom he is similarly situated
– That unequal treatment was the result of intentional discrimination
– The unequal treatment is not justified (by either a rational basis, reasonable relationship to the ends, or strict scrutiny of whether the inequality is necessary. The standard used depends on what is being discriminated against. Protected classifications such as race receive strict scrutiny, while aspects such as job qualifications might only require a rational basis).
Equal Protection- Retired law-enforcement officers are not “similarly situated to other members of the public with respect to the banned assault weapons and large-capacity magazines.”
14th Amendment- The record shows that Maryland law enforcement officers are
required to complete specialized training in order to use or carry assault weapons. Officers are trained on how and when to utilize assault weapons, and they are taught the techniques that minimize the risks of harm to innocent civilians. After receiving assault weapons training, officers are required to periodically requalify to use or carry such weapons in the line of duty.
Vagueness:
Vagueness- A statute is void for “vagueness” if “it is “so vague that it fails to give ordinary people fair notice of the conduct it punishes, or so standardless that it invites arbitrary enforcement.”
FSA- The term “copies” as used in PS 5-
101(r)(2) is not vague. Under Maryland
law, “a copy of a designated assault weapon must be similar in its internal components and function to the designated weapon.”
Just because the weapons looks similar doesn’t mean that they are “copies.”