Partial Victory In the 4th Circuit Court of Appeals

The Fourth Circuit Court of Appeals yesterday issued a ruling rejecting a lower district court’s finding that Maryland’s Firearm Safety Act (FSA) did not violate the individual rights protected and guaranteed by the Constitution’s Second Amendment.  The law, enacted in 2013 following the infamous Sandy Hook school shooting in Connecticut the previous year, broadly bans most semi-automatic rifles (commonly of the type of so-called “assault” rifles) as well as “high-/large-capacity magazines” (LCM), in this case those with capacities of greater than ten rounds


The case, Kolbe v. Hogan (14-1495), challenges the constitutionality of the FSA based on broad Second Amendment infringement grounds as well as grounds that it violates the Fourteenth Amendment’s incorporated Equal Protection Clause.  The latter assertion is based on the ban’s exempted applicability to retired law enforcement officers (LEO). 


Unfortunately, this ruling did not find the FSA as outright unconstitutional, per se.  It did, however, completely gut the lower court’s ruling and rationale of constitutionality by succinctly demonstrating that the lower court failed to apply the proper standards of judgment, as is now legal precedent derived from the landmark District of Columbia v. Heller (07-290, 2008) and McDonald v. Chicago (08-1521, 2010) cases. 


The ruling also did not find favor with the Plaintiffs’ assertion that exempting certain classes of people from the ban violated the Constitution’s Equal Protection requirements, a conclusion I find both illogical and unethical. 


But in partially dissecting the lower court’s flawed ruling, the appellate court first determined that this case was, in fact, burdensome (i.e., infringing) with respect to the Second Amendment:


…we are compelled by [District of Columbia v.] Heller and McDonald v. City of Chicago… 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 (emphasis added).



Of particular relevance to this appeal is the historical limitation upon which arms a citizen had the right to bear, as the Second Amendment protects only “the sorts of weapons… in common use at the time.    “[The Second Amendment] does not extend to all types of weapons, only to those typically possessed by law-abiding citizens for lawful purposes” (emphasis in original).



Like a number of courts that have previously considered this question, we have little difficulty in concluding that the banned semi-automatic rifles are in common use by law-abiding citizens.    (“We think it clear enough in the record that semi-automatic rifles and magazines holding more than ten rounds are indeed in ‘common use,’ as the plaintiffs contend.  Approximately 1.6 million AR-15s alone have been manufactured since 1986, and in 2007 this one popular model accounted for 5.5 percent of all firearms, and 14.4 of all rifles, produced in the US for the domestic market”) (emphasis in original).



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 (emphasis added).



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.    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.  But of course, without the ability to actually fire a gun, citizens cannot effectively exercise the right to bear arms. …  In our view, “the right to possess firearms for protection implies a corresponding right” to possess component parts necessary to make the firearms operable.    To the extent that firearms equipped with detachable magazines are commonly possessed by law-abiding citizens for lawful purposes, there must also be an ancillary right to possess the magazines necessary to render those firearms operable.  To the extent the State can regulate these magazines, it is not because the magazines are not bearable “arms” within the meaning of the Second Amendment (emphasis in original).


Then, the court determined that the use/possession of semi-automatic rifles and LCMs satisfies criteria of lawful Second Amendment-protected purposes, in contrast to Maryland’s assertions otherwise and with which the lower court agreed:


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 actually been used in self-defense in Maryland, as opposed to being possessed for self-defense.    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.  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, …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 (emphasis in original).



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.    We find nothing in the record demonstrating that law-abiding citizens have been historically prohibited from possessing semi-automatic rifles and LCMs.    “[O]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.    There is no record evidence or historical documentation that these weapons were at all prohibited until relatively recently. 


Also, the appellate court dismissed the notion that the subjects of Maryland’s ban were exempted from Second Amendment protections due to the lower court’s erroneous application of precedential “dangerous and unusual weapons” exemptions:


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 far into Heller.  As best as we can tell, no statue or case has mentioned, much less adopted, the State’s newly preferred 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 (emphasis in original).




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 from the 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.    (“[A]mong the 192 million guns in America only 35% are handguns… [H]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.    Thus, the State’s “unusually dangerous” argument is of no avail (emphasis in original). 



In sum, semi-automatic rifles and LCMs are commonly used for lawful purposes, and therefore come within the coverage of the Second Amendment. 


Finally, the Fourth Circuit ruled that the lower court must apply strict scrutiny in determining the constitutionality of the FSA, which it failed to do:


The strict-scrutiny standard requires the government to prove its restriction is “narrowly tailored to achieve a compelling governmental interest.”    To be narrowly tailored, the law must employ the least restrictive means to achieve the compelling government interest. 



At stake here is a “basic right,”… “that the Framers and ratifiers of the Fourteenth Amendment counted… among those fundamental rights necessary to our system of ordered liberty.”    …We conclude that the challenged provisions of the FSA substantially burden this fundamental right.  The burden imposed in this case is not merely incidental.    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 firearm that is commonly possessed by law-abiding citizens for such lawful purposes.  …Prohibiting this group of weapons might be “equivalent to a ban on a category of speech.” 



In sum, for a law-abiding citizen who, for whatever reason, chooses to protect his home with a semi-automatic rifles instead of a semi-automatic handgun, or possesses an LCM for use in firearms kept in the home, the FSA significantly burdens that exercise of the right to arm oneself 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.”    (“[T]he 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.”) 



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 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 [United States v.] Chester (emphasis added).



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 the court to apply strict scrutiny in the first instance.  This is not a finding that Maryland’s law is unconstitutional.  It is simply a ruling that the test of its constitutionality is different from that used by the district court (emphasis added). 


This is the second such law in recent years that Maryland appears – at least thus far – to have constructed in conflict with the Second Amendment protections guaranteed its residents.


Sadly and as mentioned, however, the Fourth Circuit determined that the Kolbe case did not violate the Constitution’s Equal Protection Clause, as incorporated to the States via the Fourteenth Amendment.  In this conclusion, the court frankly erred.  The court’s rationale is akin to suggesting that “separate but equal” is not inherently discriminatory, even though it is clearly founded upon a double-standard (and consequent inequality) of demographic protectionism.  The plain language in question is crystal clear and provides for no exceptions:


No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws (emphasis added).


But the court decided to invent exceptions anyway, and based these exceptions on unproven, inconsistent assertions that “retired law enforcement officers are different from the public in several fundamental respects” (emphasis added):


“First, retired police officers possess a unique combination of training and experience related to firearms.”  This alleged discriminator is not true on its face.  Veterans possess extremely similar firearms-related combinations of training and experience, so why are they not exempted?  America is full of civilians who can demonstrate an aptitude, experience, training, and competency with firearms through all sorts of available training and courses, many of which LEOs themselves attend to further their careers.  This is, plainly, a weak distinction. 


“Second, because they are granted a “special degree of trust,” …police officers are instilled with what might be called an unusual ethos of public service.”  As I have stated before, LEOs are not inherently better or worse than anyone else; they are people just like you and I.  This alleged distinction means nothing, unless one puts credence into the appeal to authority fallacy, which the Fourth Circuit apparently does.  If this second point that the court put forth were even marginally true, we would not likely see incidences of such egregious and inexcusable barbarity and evil in today’s police forces. 


“Third, retired police officers face special threats that private citizens do not.”  This last assertion is perhaps the most inconsistent and questionable.  The court offers this point up with no corroborating proof that the assertion is true; it is just accepted on its face as fact with no challenge examined.  The court cites a single anecdotal news story from 2007 in which an assault victim’s status as a retired LEO was actually relevant; it offers two additional examples in which the victims’ status as LEOs were entirely incidental and consequently irrelevant.  Besides, if being a retired LEO might make you more vulnerable to retributive assault, then why are witnesses of criminal prosecutions and victims of domestic abuse cases also exempt?  Notionally, if a LEO faces increased vulnerability to violent restriction for arresting someone then surely a witness/victim whose testimony helps put a convicted felon away faces a similar increased risk.


This last point is also logically inconsistent.  The court essentially says that retired LEOs shouldn’t be disarmed because they’re vulnerable to violent attack.  But out of the other side of its mouth, the court suggests it’s potentially alright (at least from a Fourteenth Amendment perspective) to disarm the public because they are not similarly vulnerable to violent attack.  But, if the latter point is true, why is Maryland trying to ban these guns and LCMs at all?  It surely is not to protect the citizenry from violent attack, because the court has stated only retired LEOs face such a heightened risk of this kind of violence.


Further, a state agent simply cannot exercise authorities, rights, or privileges that are not delegated from, and therefore rightfully possessed by, his/her governed constituency.  This reality underlies the very foundation of a free republic.  A government does not righteously exist by its own accord, but instead does so at the sufferance and by the institution of its people.


The good news, at least in this case, is that the unethical affirmation of this double-standard will likely be rendered irrelevant by the eventual invalidation of the bans themselves.  As the Fourth Circuit easily demonstrated, neither so-called “assault” weapons bans nor bans on LCMs can withstand the strict scrutiny standards set forth from Supreme Court precedents.  Since strict scrutiny requires a “narrowly tailored” law to achieve “compelling government interests” in order to be considered constitutional, bans such as these easily fail under this standard.  They are neither narrowly tailored – insofar as they widely ban sweeping, arbitrarily designated classes of popular and common firearms and accessories – and the government has already long acknowledged that such bans fail to achieve the stated goal.  The bottom line is that such bans are wrongheaded and infringing, and it is up to the reader to determine if this is due to nefariousness or ignorance, or both, on the part of their respective proponents.


Overall, the court concluded:


To sum up, 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.  The panel affirms the district court’s summary judgment order on Plaintiffs’ Equal Protection claim with respect to the FSA’s exception permitting retired law enforcement officers to possess semi-automatic rifles.  Finally, the panel affirms the district court’s conclusion that the FSA is not unconstitutionally vague. 


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  1. The Second Amendment does not Only Protect Firearms |
  2. Another Apparently Unjustified Police Shooting |
  3. A Look at Modern Political Newspeak |

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