Today the Fourth Circuit Court of Appeals sitting En Banc issued a devastating opinion regarding “assault rifles” in Kolbe v. Hogan. The Fourth Circuit covers Maryland, West Virginia, Virginia, North Carolina and South Carolina.
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. (Quick note to the readers, the use of the terms “assault rifles”, “military-style rifles and shotguns” and “large capacity magazines” are being used in reference to the Court opinion and not the author’s belief that these firearms and magazines should be referred to as such).
At the District Court level, 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. As a result the Court employed an intermediate scrutiny analysis.
As the case trickled up the Court system, the 4th Circuit issued an opinion from a divided three judge panel which found “that the banned assault weapons and large-capacity magazines are indeed protected by the Second Amendment, and that the FSA substantially burdens the core Second Amendment right to use arms for self-defense in the home.” More importantly, the Court became the first Court in the country to require a strict scrutiny analysis in regard to the Second Amendment claims.
Unfortunately, the Court sitting En Banc had a different idea. It was happy to affirm the District Court’s opinion, “in a large part adopting the Opinion’s cogent reasoning as to why the FSA contravenes neither the Second Amendment nor the Fourteenth.” However, the Court did make an explicit statement that the District Court did not. The Court stated
[w]e conclude — contrary to the now-vacated decision of our prior panel — 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…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.
The Court explicitly adopted that intermediate scrutiny was the correct analysis to utilize. “[I]ntermediate scrutiny is the appropriate standard because the FSA does not severely burden the core protection of the Second Amendment, i.e., the right of law-abiding, responsible citizens to use arms for self-defense in the home.”
In its analysis the Court found that “[t]he FSA bans only certain military-style weapons and detachable magazines, leaving citizens free to protect themselves with a plethora of other firearms and ammunition. Those include magazines holding ten or fewer rounds, nonautomatic and some semiautomatic long guns, and — most importantly — handguns.”
Applying the intermediate scrutiny standard the Court found “the FSA survives such review because its prohibitions against assault weapons and large-capacity magazines are — as they must be — ‘reasonably adapted to a substantial governmental interest.’” The Court stated that “Maryland’s interest in the protection of its citizenry and the public safety is not only substantial, but compelling.”
Unfortunately, this means that yet another Court has refused to require a strict scrutiny analysis to a fundamental constitutional right. Perhaps the most troubling aspect is the Fourth Circuit believes that firearms like the AR-15 are not protected by the Second Amendment, opening the door for more restrictive legislation to be put in place and making it more difficult to challenge.
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