USA –-(Ammoland.com)- 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.
Don’t forget to like The Gun Collective on Facebook, Instagram, YouTube, Full 30, Snap Chat and wherever else you can catch us on social media.
And as always thanks for watching!
Links for this episode:
- Kolbe v. Hogan (4th Cir. 2017) – https://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) – https://blogs.reuters.com/alison-frankel/files/2016/06/Kolbe-v-Hogan.pdf
- Supreme Court Writ of Certiorari – https://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
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If Snoop Dog can make a video putting a .357 to President Trumps head and pulling the trigger – I’m sure it would be OK to make a video of putting an AR to the head of a 4th circuit justice (or progressive/communist traitor to the constitution state governor) and pulling the trigger.
I hear that these 4th circuit justices will be going around door to door collecting these rifles that they decree are no longer covered by the second amendment. I also hear that everyone is going to be happy and willing to turn their rifles over to them.
Gonna be fun to watch.
I’ll be more than happy to turn my gun over, fully loaded with the business end pointed at those who think they can take it.
The AR is probably the most prolific modern rifle in the USA. With all it’s mods it is likely the most useful; from the range to big game; rifle in the USA. So, let them come and take them and they will learn what other rifles are capable of accomplishing.
Heller did not “explicitly” set ARs outside the 2nd Amendment. Seems like they just ignored ARs rather than make a decision. Also, it seems that they made allowance for arms commonly accepted for various sporting uses. I’d sy the AR fits that requirement as “commonly” used.
The problem in the federal court system is the fact that judges get lifetime appointments to the bench. So liberal presidents appoint liberal, activist judges who make these stupid rulings bypassing the Constitution and continue to do so unchecked. Look at what the 9th District is doing to President Trump’s immigration executive order! By the time they die off or retire and true constitutional conservatives take their places, the damage is done and can last for generations. It truly baffles me that so-called educated people have so much difficulty understanding those four little words: “Shall not be infringed”!!!!!!
We, the Patriotic American’s need to petition the Congress and Senate for a new law that states, Any Federal Judge that exceeds his or her authority under The United States Constitution will be immediately removed from the bench, his or her License to Practice Law will be permanently revoked.
Hogwash is right. The second amendment does not give you the right to bear semi-automatics, knives, brickbats or very hard oranges….it says “arms”. In other words, anything used to defend yourself and your country. These weasels really think they are talking down to ignorant people, when they, themselves, are the ignorant (and evil) ones.
@Pistol Pete…Trump ordered the federal district attorneys to step down, not the judges. He does not have the authority to force judges out. The only way for this to be resolved once and for all is to have the supreme court address the 2nd amendment with a complete and thorough explanation and decision of what an arm is and what the government can actually actually control. Anything less will result in rogue courts writing rogue decisions. What is a “arm” as defined by the 2nd amendment. There was a time when you could legally own a Gatling gun but that… Read more »
The Red Queen…”Off Her Head!”
these are Obama appointed Judges
what decision did you expect
Now that all Obama appointed judges have been ordered to step down
lets see what happens
I don’t care what any court in this land rules on that pertains to my gun’s and ammo. The Founding Fathers placed a direct quote into The United States Constitution “Shall Not Be Infringed.” So the da*n dress wearing freaks sitting on the benches in the courts, can kiss my free American A*s.
It seems strange to me that the 4th circuit would issue a finding that would deny the Militias their ability to have access to military firearms, designed for the military, especially since the Militia is all the citizenry and they are all members of the unorganized Militia and ARE THE MILITARY OF THE PEOPLE AND ALLOWED UNDER THE CONSTITUTION! The only reasoning I can think of is that the anti-gun elite want to render the Militias of the nation unable to carry out their duties under the law and remove the risk of being forced from office by that Militia.… Read more »
I’m confused too! Sounds like hog wash! Around and around the circle we go never to see the end!
Adam, this is extremely frustrating and concerning. You indicate that the best (only?) way to truly reverse this decision is to go to Congress to get a new law passed. So you are saying we need Congress to pass ANOTHER law that essentially restates the right identified in the Constitution, in this case the 2nd Amendment. the problem here is a totally biased and tortured interpretation of the “law” (Constitution) in the first place. What is to keep a court from another tortured misreading of the new law to further their anti-gun political beliefs. I’m not challenging you at all,… Read more »
The 4th Circuit Court needs to be charged with Treason and Sedition for violation the Constitution ” SHALL NOT BE INFRINGED” and replaced with judges who are loyal to the Constitution and their Oath of Office. I personally charge them with crimes against the American Citizenry. They should also be charged with endangering Americans by violating the Very foundation of all of our laws. How stinking rotten can that court be against the very laws they swore to uphold . I wouldn’t trust my life to any one of them, they smell of corruption. Every one of them voting this… Read more »
Funny that laws that are upheld by the supreme court keeps coming back up. AR-15’s are not military rifles as they are not automatic. That is the bottom line. Just on that, it should be thrown out by any court!