Assault weapons ban is not dead

Contrary to what you may have heard, Wilson verses Cook County, the challenge to Cook County’s Blair Holt Assault Weapons Ban, is not dead. As an expert witness attached to the case-and previously to Friedman v. Highland Park-I’ll try to shed some light on the situation.

Our attorney moved to voluntarily dismiss the case on July 28th about a week before we were to go to court to set a trial date. The move allows us to refile within one year and pick up where we left off, specifically meaning everything remains intact, including the long, voluminous discovery we went through with witnesses all over the country. The purpose for the voluntary dismissal was because the judge was pushing for a trial date prior to Thanksgiving which was not in our best interest. The reason is because our attorney wants to wait for the 4th Circuit Court of Appeal’s en banc decision in Kolbe v. Hogan.

Kolbe verses Hogan is a Second Amendment challenge to a 2013 Maryland statute that bans the sale of firearm magazines that hold more than 10 rounds and that also bans many firearms by labeling them as “assault weapons.” At issue is the State’s notion that magazines holding more than 10 rounds, and so-called assault weapons, are manufactured and sold for use by the military and law enforcement and not for John Q. Public.

The plaintiff’s position is magazines holding more than 10 rounds are “common” and “standard,” with over 75 million in circulation in the civilian population; modern sporting rifles such as the AR-15 are the most popular type of firearm available today for lawful civilian use for recreation, hunting and personal protection. The crux of the matter is intermediate verses strict scrutiny. In Kolbe verses Hogan, the lower court applied the wrong standard, namely a weak version of intermediate scrutiny.

Strict scrutiny is the most stringent standard of judicial review. U.S. courts apply the strict scrutiny standard in two contexts: one is when a fundamental constitutional right is infringed, particularly those found in the Bill of Rights. The other situation is that the court has deemed a fundamental right protected by the Due Process Clause of the 14th Amendment, or when a government action applies to a “suspect classification,” such as race or national origin.

To pass strict scrutiny, the law or policy must satisfy three tests:

First, it must be justified by a compelling governmental interest which has never been clearly defined but generally refers to something necessary or crucial, as opposed to something merely preferred.

Second, the law or policy must be narrowly tailored to achieve that goal or interest. If it encompasses too much or fails to address essential aspects of the compelling interest, then the rule is not considered narrowly tailored.

And third, the law or policy must be the least restrictive means for achieving that interest, meaning there must not be a less restrictive way to effectively achieve the compelling government interest. Intermediate scrutiny is the second level of deciding issues using judicial review and is less rigorous.

Clearly it is in our best interest for the court to rule in favor of strict scrutiny and hence the reason why our attorney is taking a wait-and-see position. He looked at the unfavorable decisions in the Friedman, Shew and Heller II cases and realized moving forward at this time would not be in our best interest.

Conversely the possibility of a favorable decision by the 4th Circuit would be worth waiting for. If they decide to apply strict scrutiny to the Maryland ban, it gives us a stronger case to argue the point that strict scrutiny should also be applied to the Cook County ban. And finally, there is also the simple reality that currently, with Scalia gone, SCOTUS isn’t as friendly as it once was. So Wilson verses Cook County isn’t dead; it’s biding its time, and we’re crossing our fingers.