MD: Big Win in Kolbe v Maryland

[ELB]

http://www.ca4.uscourts.gov/Opinions/Pu ... 1945.P.pdf

Maryland passed the Firearm Safety act banning "assault weapons" and large capacity magazines, among other things. Kolbe and others sued in Federal District Court alleging violations of the 2A. The District Court rejected the suit in its entirety under "intermediate scrutiny". The Appeals Court agreed on two minor issues, but on the main one - banning "assault weapons" and magazines - they did not, sending the suit back to District Court for "strict scrutiny."

From the beginning of the majority opinion (paragraph breaks added):

In April 2013, Maryland passed the Firearm Safety Act (“FSA”), which, among other things, bans law-abiding citizens, with the exception of retired law enforcement officers, from possessing the vast majority of semi-automatic rifles commonly kept by several million American citizens for defending their families and homes and other lawful purposes.

Plaintiffs raise a number of challenges to the FSA, contending that the “assault weapons” ban trenches upon the core Second Amendment right to keep firearms in defense of hearth and home, that the FSA’s ban of certain larger-capacity detachable magazines (“LCMs”) likewise violates the Second Amendment, that the exception to the ban for retired officers violates the Equal Protection Clause, and that the FSA is void for vagueness to the extent that it prohibits possession of “copies” of the specifically identified semi-automatic rifles banned by the FSA.

The district court rejected Plaintiffs’ Second Amendment challenges, concluding that the “assault weapons” and larger-capacity magazine bans passed constitutional muster under intermediate scrutiny review. The district court also denied Plaintiffs’ equal protection and vagueness claims.


In our view, Maryland law implicates the core protection of the Second Amendment—“the right of law-abiding responsible citizens to use arms in defense of hearth and home,” District of Columbia v. Heller, 554 U.S. 570, 635 (2008), and we are compelled by Heller and McDonald v. City of Chicago, 561 U.S. 742 (2010), 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. Thus, the panel vacates the district court’s denial of Plaintiffs’ Second Amendment claims and remands for the district court to apply strict scrutiny. The panel affirms the district court’s denial of Plaintiffs’ Equal Protection challenge to the statutory exception allowing retired law enforcement officers to possess prohibited semi-automatic rifles. And, the panel affirms the district court’s conclusion that the term “copies” as used by the FSA is not unconstitutionally vague.

[ELB]

The Appeals Court also noted:

We think it is beyond dispute from the record before us, which contains much of the same evidence cited in the aforementioned decisions, that law-abiding citizens commonly possess semi-automatic rifles such as the AR-15. Between 1990 and 2012, more than 8 million AR- and AK-platform semi-automatic rifles alone were manufactured in or imported into the United States. In 2012, semi-automatic sporting rifles accounted for twenty percent of all retail firearms sales.

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.

[C-dub]

I wonder how many people were killed while driving in or by someone driving a Ford F-150 in 2012 or as a result of something someone in one did?

[ELB]

S'more good stuff (LCM=Larger Capacity Magazine):

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. “[O]n a nationwide basis most pistols are manufactured with magazines holding ten to 17 rounds.” J.A. 2122. Even more than 20 years ago, “fully 18 percent of all firearms owned by civilians . . . were equipped with magazines holding more than ten rounds.” Heller II, 670 F.3d at 1261. Virtually every federal court to have addressed this question has concluded that “magazines having a capacity to accept more than ten rounds are in common use.” Fyock v. City of Sunnyvale, 25 F. Supp. 3d 1267, 1275 (N.D. Cal. 2014) (noting such magazines comprise “approximately 47 percent of all magazines owned” and number “in the tens-of-millions, even under the most conservative estimates” (internal quotation marks omitted), aff’d, 779 F.3d 991, 998 (9th Cir. 2015) (“[W]e cannot say that the district court abused its discretion by inferring from the evidence of record that, at a minimum, magazines are in common
23
use.”). “There may well be some capacity above which magazines are not in common use but, if so, the record is devoid of evidence as to what that capacity is; in any event, that capacity surely is not ten.”

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.

[NotRPB]

Attorney General Morrisey, 21 States Win Gun Rights Victory
http://www.ago.wv.gov/pressroom/2016/Pa ... ctory.aspx

CHARLESTON — West Virginia Attorney General Patrick Morrisey hailed a federal appeals court decision as a crucial victory in protecting the rights of gun owners across the state and beyond.

The 4th U.S. Circuit Court of Appeals ruled Thursday that a district court must adopt a strict standard when it reconsiders the constitutionality of a Maryland weapons ban, which prohibits sale, transfer and possession of certain firearms.

Attorney General Morrisey led 21 states in arguing for strict scrutiny. The appeals court adopted the states’ position and further agreed that semiautomatic rifles and standard capacity magazines subject to Maryland’s ban are protected by the Second Amendment.

“Singling out these firearms is akin to banning certain categories of speech – both would be unconstitutional,” Attorney General Morrisey said. “My office remains committed to defending every West Virginian’s Second Amendment rights.”

West Virginia and its partners filed a friend of the court brief in November 2014 as part of Kolbe et. al. v. Hogan et. al. Any 4th Circuit ruling sets case law governing West Virginia, Maryland, North Carolina, South Carolina and Virginia for any similar future state or federal laws

The Maryland ban would apply to semiautomatic rifles and many standard capacity handgun magazines. The appeals court, in ordering the stricter review, ruled such a ban infringed upon core Second Amendment rights and severely burdened one’s constitutional ability to keep commonly used weapons in the home.

Thursday’s ruling did not strike down the Maryland law, but returned the case to district court for a second look under the stricter standard. Attorney General Morrisey said his office will monitor the case as it proceeds.

West Virginia filed its friend of the court brief with Alabama, Alaska, Arizona, Florida, Idaho, Kansas, Kentucky, Louisiana, Michigan, Missouri, Montana, Nebraska, New Mexico, North Dakota, Oklahoma, South Carolina, South Dakota, Texas, Utah and Wyoming.

[ELB]

The reason the court ruled that AR/AK pattern rifles are indisputably in common use (and therefore protected by the 2A) is because... well... they are. People have bought millions of them. Same for hi-cap magazines.

There is a hint here. The way to get something protected by the 2A as commonly used by citizens is to buy LOTs of them. Consider suppressors, SBRs, SBSs.... <insert foot stomp here>

[NotRPB]

good point

......................

Huff Po article:
02/04/2016 06:06 pm ET
Cristian Farias
Legal Affairs Reporter, The Huffington Post

People Have A 'Fundamental Right' To Own Assault Weapons, Court Rules
Certain semiautomatic firearms deserve the highest level of protection the Constitution allows, says appellate court.

Big article at:
http://www.huffingtonpost.com/entry/ass ... 69c7a65c21

[srothstein]

Maybe it is my suspicious nature or maybe it is my lack of belief in miracles occurring in today's world, but I do not think this is the great victory it really sounds like. I have not read the opinion so I am basing this on media reports but I do not think the court wrote the opinion to protect our rights. It does not have that history, IMO. I think there are strong arguments that could be made for the protection of assault weapons. One example is to use the Miller case and argue that weapons similar to the military are the most strongly protected of all weapons.

I think we have a small victory here but it has a very large potential bite to it. I may be conspiracy minded, but I think they ruled this way solely to create a conflict between the circuits. It is more a rebellion against the Supreme Court not reviewing cases. This is an attempt to force them to make a decision. That can be a large victory for us but could also be a large loss.

I am not celebrating this until after I see how the Supreme Court rules on this issue.

[ELB]

I have read the opinion --- well, a good part of it, it is 90 pages -- and I don't see this as a way JUST to provoke the SCOTUS. It provides some pretty solid, definite logic for why laws and regulations affecting the 2A should face strict scrutiny. If they just wanted to make an opinion different other circuit courts, they would not need to go to the lengths they did to justify the decision. I also think they supported the decision as strongly ad they did not only for SCOTUS, but also in anticipation of an en banck review before it heads to SCOTUS.

Plus, the two judges in the majority, in their reply to the dissent, made a point of seriously snubbing the dissenting judge for essentially claiming the majority will be responsible for the next mass/spree shooting. Now there (the dissenting judge) is someone who threw out a conclusion he wanted and provided very weak support for it.

[RHenriksen]

Everything I've read from this decision (but no, I haven't tackled all 90 pages) sounds very strong for us.