Fourth Circuit Gets It Right
on Maryland’s Assault Weapon Ban
David A. Lombardo
My profound thanks to the Fourth Circuit Court of Appeals. Finally someone gets that the modern sporting rifle is arguably the poster child for the Second Amendment.
Today’s AR-15-and whatever new firearm is invented tomorrow that catches the military’s eye-is precisely what the Founding Fathers had in mind when they penned the Second Amendment. It’s not about hunting, recreational shooting or even personal protection. The Second Amendment is about the right of John Q to live in peace, free from the tyranny of an out-of-control, over-reaching government. It has been my observation that the more corrupt and tyrannical the government, the louder the cries for gun control and confiscation to “improve public safety.” Well, the only safety that improves is that of the despot who seeks to control John Q.
According to the Firearm Safety Act (FSA), after October 1, 2013, it became illegal to “possess, sell, offer to sell, transfer, purchase, or receive” or to transport into Maryland any firearm designated as an “assault weapon” including “assault long guns, assault pistols,” and copycat weapons.” It further defined an “assault long gun” as any one of the more than 60 semi-automatic rifle or shotgun models specifically listed in the act. Effectively, the FSA banned almost all semi-automatic firearms, making possession a misdemeanor with a jail sentence of up to three years.
This week a panel of three Fourth Circuit Court of Appeals judges issued a major decision in the lawsuit challenging Maryland’s FSA-great shades of Friedman v. Highland Park and Wilson v. Cook County.
What the Fourth decided in Kolbe v. Hogan is that the FSA “implicates the core protection of the Second Amendment” and that “strict scrutiny is the applicable standard of review for Plaintiffs’ Second Amendment claim.” Here’s where it gets interesting.
Strict Scrutiny, the most stringent form of judicial review, requires the legislature must have passed the law to further a “compelling governmental interest” and must have narrowly tailored the law to achieve that interest. By example, the court’s finding in Friedman v. Highland Park would not pass strict scrutiny. It said, “If a ban on semiautomatic guns and large-capacity magazines reduces the perceived risk from a mass shooting, and makes the public feel safer as a result, that’s a substantial benefit.” Great, touchy feely outweighs a Constitutional right.
In a way the FSA was passed to further a compelling governmental interest, but I don’t think “To be able to better control the population so we can be dictators” is going to play well in court. Historically the government has had a difficult time justifying laws that must meet strict scrutiny.
In the Kolbe decision, the Court determined that the FSA did indeed violate an individual’s right to keep and bear arms as guaranteed by the Second Amendment. The Court stated: “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. Moreover, the FSA also reaches every instance where an AR-15 or similar semi-automatic rifle might be preferable to a handgun or bolt-action rifle – for example hunting, recreational shooting, or competitive marksmanship events, all of which are lawful purposes protected by the Constitution.”
The Court continued in their argument that a regular, law-abiding person would have many legitimate reasons for wanting to purchase and possess guns banned under the Act: “There are legitimate reasons for citizens to favor a semiautomatic rifle over handguns in defending themselves and their families at home. The record contains evidence suggesting that ‘handguns are inherently less accurate than long guns’ as they ‘are more difficult to steady’ and ‘absorb less of the recoil….reducing accuracy.”
In issuing the decision, the Court vacated “the district court’s denial of Plaintiffs’ Second Amendment claims and remanded the case for the district court to apply strict scrutiny.” At least for the moment, reason and logic prevail.
