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Big #2A Win – 4th Circuit Applies Strict Scrutiny to Maryland Gun Control Law

Big #2A Win – 4th Circuit Applies Strict Scrutiny to Maryland Gun Control Law

Virtually all gun control laws will be found unconstitutional if subject to strict scrutiny

In 2013, Maryland enacted its Firearms Safety Act (FSA). With its passage, effectively banning its residents from owning any of the large majority of semi-automatic rifles owned by American citizens (exceptions were made for retired law enforcement officers). The FSA also imposed other restrictions, such as banning certain standard-capacity magazines.

Such laws are common in blue states, of course, and when challenged in the Federal courts on the grounds that they violate the Second Amendment they are typically subject only to intermediate (or lesser) scrutiny. Generally speaking, if the State can articulate virtually any purportedly reasonable basis for the gun law, it survives scrutiny. Merely uttering the words “public safety” is usually sufficient for this purpose.

Of course, normally laws that arguably infringe an enumerated Constitutional rights are not subject to mere intermediate scrutiny, but rather they are subject to strict scrutiny. To survive strict scrutiny the law must advance not merely any governmental interest, but in particular a compelling governmental interest. It is perhaps arguable that “public safety” would serve to meet this requirement. In addition, however, the law must also be narrowly tailored to actually achieve that interest. It is this second requirement that almost invariably leads to the law in question being found to be unconstitutional.

In a nutshell, then, if intermediate scrutiny is applied to almost any law, the law survives. If strict scrutiny is applied to almost any law, the law falls.

To nobody’s surprise, that’s precisely what happened with the FSA was challenged in Federal court in Kolbe v. Hogan, in which the plaintiff gun owners never even got to argue on the merits. There the federal court granted summary judgment to the state, concluding that under intermediate scrutiny the FSA was not an unconstitutional infringement of the Second Amendment. See Kolbe v. O’Malley, 42 F. Supp. 3d 768 (D. Md. 2014).

It is a true oddity of constitutional law that the rights enumerated in the Constitution are almost invariably privileged to strict scrutiny–except for the rights enumerated in the Second Amendment.

This state of affairs has allowed the implementing of constraints on the Second Amendment right to keep and bear arms that would never have been tolerated in the context of First Amendment rights to freedom of religion, speech, or assembly, or Fourth Amendment rights against governmental search and seizure, Fifth Amendment rights to due process and against self-incrimination and double jeopardy, and so forth.

Indeed, Second Amendment advocates have long noted this disparity of treatment, and have long fought to eradicate it. We know full well that should strict scrutiny be applied to the Second Amendment, the vast majority of gun laws currently on the books would inescapably be found to be unconstitutional infringements of the Second Amendment, and discarded.

In short, the application of strict scrutiny to the Second Amendment, just as it is applied to the other rights enumerated in the Constitution, would be a complete game changer on gun rights on a national scale.

Today, the United States Court of Appeals for 4th Circuit did exactly that, applying strict scrutiny to Maryland’s “Firearms Safety Act,” in a two-to-one decision that could change the face of gun laws for Maryland (arguably one of the most anti-gun states in the nation), and perhaps portend similar relief for the beleaguered residents of New York, New Jersey, California, and the few other remaining anti-gun states.  This decision is embedded at the bottom of this post.

In brief, the court’s 2-to-1 majority concluded first that the guns and magazines banned by the FSA fall within the scope of the Second Amendment, and second that:

Strict scrutiny, then, is the appropriate level of scrutiny to apply to the ban of semi- automatic rifles and magazines holding more than 10 rounds.

That’s all I have time for in this post, but I encourage all of you to read the 4th Circuit’s opinion in its entirety:

–-Andrew, @LawSelfDefense


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As a Maryland resident. Hooray.

But I’m not holding my breath. Even with a Republican Gov, I can’t see the state government allowing the FSA to disintegrate. It’s main author while it was in the state senate is our AG now. $%#& Frosh.

The law is also poorly written. You can own 100 round magazines in MD legally. You just can’t purchase them here, or have them shipped here. Yet it’s 100% legal to drive over to VA, buy as many mags as you want, and drive back. So dumb.

Henry Hawkins | February 4, 2016 at 2:51 pm

When did this disparity of treatment on 2A cases vs 1A, 4A, 5A, etc., begin? Is there a particular point in time or particular event it is tied to?

    Estragon in reply to Henry Hawkins. | February 4, 2016 at 4:34 pm

    There was a series of federal laws passed, mainly in the 1930s, addressing interstate commerce in firearms. The first, restricting mailing of small arms, was in 1927.

    But the current mess was created beginning in 1968 after the several assassinations of public figures. The left reacted as usual, appealing to emotions to restrict the rights of the law-abiding instead of toughening criminal sentencing.

Isn’t it even the case that a heavy-barreled AR-15 can be legally purchased and owned and used in MD?

Simple question: why was intermediate scrutiny applied to gun laws in the past? What caused this dichotomy between 2A rights and other constitutional rights?

    Estragon in reply to HandyGandy. | February 4, 2016 at 4:35 pm

    The short answer is that the public tolerated it.

      As always, it’s fundamentally a political problem. If the populace declines to punish politicians who vote for 2A infringing legislation, and allows them to appoint judges who hand down 2A-infringing rulings, we get CA/DC/MD/NJ/NY.

      Where the populace holds those politicians accountable, we see a Progressive governor of Virginia rapidly reverse his Attorney General’s abrupt decision to discard CCW reciprocity on a wide scale.

      I prefer the latter scenario. 🙂

      In any case, in the end we end up with the 2A we’ve earned.

      Or not.

      –Andrew, @LawSelfDefense

        And don’t forget CT

          Marcus in reply to Marcus. | February 4, 2016 at 7:06 pm

          and it just occurred to me to name MA 😀 😀

          MA is plenty bad, but it’s not NJ/MD/CA/NY bad. I’ve had a CCW here my entire adult life, have my share of Modern Sporting Rifles (albeit without bayonet lugs or collapsible stocks), and was “fortunate” to have moved here long enough ago that my high-cap mags are all grandfathered (but can’t buy new ones, of course).

          Still, only 15 months left in New England for me, and then I’m OUT of the People’s Commonwealth. 🙂

          –Andrew, @LawSelfDefense

          tom swift in reply to Marcus. | February 4, 2016 at 8:56 pm

          MA made the bizarre decision that relics are a public safety problem.

Will the Left’s fall back position be selective incorporation? I imagine the Left will wait for progressive stacking of the Supreme Court and reinterpret the entire Bill of Rights…

This seems to be an inevitable outcome of DC v Heller and McDonald v Chicago. I can’t see how any reasonable person can claim that a Glock 19 or an AR-15 with standard magazines is not a firearm in common use for legal means.

The Friendly Grizzly | February 4, 2016 at 3:34 pm

“In 2013, Maryland enacted its Firearms Safety Act (FSA). With its passage, effectively banning its residents from owning any of the large majority of semi-automatic rifles owned by American citizens (exceptions were made for retired law enforcement officers).”

Why the exception for retired LEOs? Unless there is some sort of ready reserve provision to call them back to duty, I see no justification for it.

Not only is armed self-defense a human and legal right, but it is not based on a pro-choice faith pulled out of the dark fringes of a penumbra.

That said, elective abortion is still not a right and the First Amendment does not recognize abortion rites. Neither does the Ninth Amendment grant sanctuary for committing premeditated abortion in privacy. Irresponsible use of a firearms, scalpels, etc. to terminate a human life, especially a wholly innocent human life, will be prosecuted by The People under the law.

    Sharpshooter in reply to n.n. | February 7, 2016 at 8:17 pm

    “Irresponsible use of a firearms, scalpels, etc. to terminate a human life, especially a wholly innocent human life, will be prosecuted by The People under the law.”

    Come back when you can provide a good, rational definition of “Human Life”.

      MJN1957 in reply to Sharpshooter. | February 8, 2016 at 2:19 pm

      I think the medical community has answered that question quite handily: Whenever a child can survive independent of the mother.

      If a child can survive independent of their mother – regardless of the medical technologies necessary – there is no rational argument for claiming that the child is not an independent human being due legal recognition of their life.

        Skookum in reply to MJN1957. | February 8, 2016 at 7:16 pm

        Biologically speaking, a zygote — an egg at the moment of fertilization — is undeniably human life, as DNA will attest. More relevant, as you have addressed, is the issue of viability.

My guess is the Supreme Court will apply strict scrutiny only to fundamental rights, such as gay marriage. Under Anthony Kennedy’s new expansive definition of the Fourteenth Amendment — cultural norms and the Amendment are inextricably intertwined in determining fundamental rights. Sadly firearms are not in culturally favored by the cognoscenti.

The words of Kennedy in OBERGEFELL VS HODGES may go are profound — although they may be profound folly. He wrote:

“The nature of injustice is that we may not always see it in our own times. The generations that wrote and ratified the Bill of Rights and the Fourteenth Amendment did not presume to know the extent of freedom in all of its dimensions, and so they entrusted to future generations a charter protecting the right of all persons to enjoy liberty as we learn its meaning. When new insight reveals discord between the Constitution’s central protections and a received legal stricture, a claim to liberty must be addressed.”

So according to Kennedy it is all up to how certain people feel.

I am somewhat confused.

I thought that the “Rational Basis Test” was the easiest and least restrictive. Essentially the government wins if the law serves a legitimate government interest that can be rationally supported by virtually any argument chain–no matter how unlikely. And the burden of proof was on the challenger. Almost impossible to beat.

“Intermediate Scrutiny,” on the other hand hand, would require that the government show that the law is substantially related to an important government interest. And the government–not the challenger– now has the burden of proof. If I recall correctly, the intermediate scrutiny test applies to gender and “illegitimacy” issues. But it is a higher standard than the rational basis test.

Has the application of the intermediate scrutiny test in the second amendment arena essentially made it indistinguishable from the rational basis test?

    “Has the application of the intermediate scrutiny test in the second amendment arena essentially made it indistinguishable from the rational basis test?”

    Yes. “Public safety” is always deemed “an important government interest,” and the government has little trouble meeting that burden of proof under even intermediate scrutiny. After all “guns kill people,” doncha know. 🙂

    –Andrew, @LawSelfDefense

So what does this mean from a practical standpoint, i.e. when can I go down to my local gun shop and purchase a firearm that was banned in 2013?

If the authors of the federal and various State constitutions thought that “public safety” was enough to justify a breach of natural rights, they could have just written that into the constitutions: “The legislature shall have power to make any laws necessary for the safety of the public.” But they did not. Neither “public safety,” nor necessity, nor expediency are valid reasons for breaching natural and other constitutionally-guaranteed rights. Indeed, our constitutions spell out the only method by which individuals (not the entire populace) can be stripped of rights – due judicial process. Statutes are created by legislative process, so not only do they not qualify, when they attempt to supplant the required judicial due process it is an encroachment by the legislature upon the prerogatives of the judicial branch and a violation of the separation of powers.

Not being familiar with the 4th Circuit, what are the chances they will take the case en banc and overrule this decision. Just as I fully expect the 9th en bank to overrule the superbly reason Peruta v San Diego case?

I don’t see the opinion…

I suppose the real question in my mind is would SCOTUS agree with applying the “strict scrutiny” standard to the Second Amendment? As a practical matter, it seems that’s quite arguably the right standard, although the case law obviously works against it. What’s the actual compelling argument one might use to plead for that standard? Has the 4th Circuit aptly laid that out in its decision?

There also seems to be some broader implications to statutes such as the NFA. That always worries me as it becomes part of the pathos plea that applying that standard will have “devastating” effects. That then becomes the house of straw upon which they build a compelling interest. Although the verifiable facts now become much more material to the argument.

As I see some of these cases defeated time after time using the same arguments, I’m wondering if this might be the Rosetta Stone?

“There also seems to be some broader implications to statutes such as the NFA”

I was thinking the same thing.

If this ruling stands, would the Hughes Amendment withstand strict scrutiny?

I’m still trying to get my mind around the idea that our southern border remaining a sieve and the border patrol neutered is good for public safety, but my 15-round mag isn’t. Only in the “mind” of a liberal dipsquat would that make a lick of sense.

Being a Maryland resident and NRA Life Member, I was very encouraged to hear this news.
Thousands of people showed up at Lawyers Mall to protest SB-281, but we were ignored by our representatives.
The political ill-wind that it generated is being heard.
We have a Republican Governor now, which would have been unheard of 5-10 years ago. I became a Democrat with the sole purpose of fighting this cancer called “liberalism” and “progressive” from the inside. Code words for socialist politics. There is nothing “progressive” about socialism. It was attempted by Marx and the Soviet Union and failed.

Dont get your hopes up Andrew. If SCOTUS believed in strict scrutiny they wouldn’t have let 3 different flavors of intermediate evolve and stand with plenty of chances to define it, in last 5 years- something like 20-30 gun cases they COULD have weighed in on, but let slide…

supposedly waiting for the old circuit split, letting things percolate up from lower courts…yea, thats it…

They will simply pass on Kolbe like they passed on Friedman, Jackson, etc etc etc.

Until we get a reliable 2A originalist on SCOTUS to replace the squishy Kennedy, the swing vote that no one on the two opposing sets of 4 each left and right Justices, nothing is going to happen. The right fears unwinding the close vote on Heller, and the Left fears something like Kolbe validating it, further interpreting the gray areas left on purpose in Heller and McDonald to be defined later.

The simple fact is SCOTUS has been AWOL on 2A law, and dont expect that to change, until a couple die off and are replaced, left or right.

In the meantime, the job for us 2A civil rights believers is to vote to put a Republican in the WH, any one – my pet dog if needed, to beat HRC. And then write the laws in Congress that the President can sign. Including Constitutional carry, if need be, and legalizing all large magazines, or whatever. Let the Dems fight it in lower courts for decades to work it up to SCOTUS, like we have…

Or. We. Are. Screwed. For. Decades.

Its just that simple.