On Tuesday, the U.S. Court of Appeals for the 4th Circuit published a decision in Kolbe v. Hogan, a case in which plaintiffs challenged the constitutionality of Maryland’s Firearms Safety Act of 2013.
Operatively, the FSA bans what the court refers to as “military-style rifles and shotguns” and detachable magazines having a capacity of more than 10 rounds of ammunition. Violating the FSA carries a penalty of three years’ imprisonment and maximum fine of up to $5,000, with more severe penalties if a prohibited weapon is used in the commission of a felony.
The plaintiffs allege that the FSA violates their Second Amendment rights. The 4th Circuit disagreed and upheld the statute, saying the statute was beyond the ambit of the Second Amendment’s protective reach.
For those who have been paying attention, the court’s decision is unsurprising. The federal judiciary has been undermining Second Amendment rights for years. More shocking is the 4th Circuit’s foreboding rationale.
The 4th Circuit applies an unworkable reading of the 2008 landmark Supreme Court case District of Columbia v. Heller. The court reasons that Heller, which affirmed the right to keep and bear arms as an individual right rather than a right connected with service in the militia, offers a bright-line rule for discerning which firearms are not constitutionally protected: weapons that are “most useful in military service,” says the court, are not shielded by the Second Amendment. Applying this rule, the court ultimately decides there is no substantive difference between the AR-15 — or any of the other 44 types of firearms specifically banned by the FSA — and the military’s M16.
Any person with experience on the M16 or AR-15 knows the weapons are similar; they are not, however, identical. Many differences exist (especially depending on the model), but the primary difference is that the M16 has fully automatic capabilities. Yet the court dismisses this crucial difference as insignificant, treating isolated rate-of-fire comparisons between the two weapons as decisive (here, the court’s overweening intellectual conceit outpaces its wisdom; I challenge the distinguished judges to find a combat infantry unit that believes there is no operative difference between a machine gun and a semiautomatic rifle).
Despite these differences, the court charges onward, deciding such firearms fall outside the purview of the Second Amendment. This decision begs the question: What is the limit? If the court is willing to overlook differences in functionality, performance metrics, and physical characteristics, what basis exists to differentiate between firearms reserved only for military use and those protected by the Second Amendment? Indeed, if a lawmaking body sought to eviscerate the Second Amendment’s protections, under the 4th Circuit’s reasoning, it need only manufacture a connection — however ludicrous — between the proposed banned firearm and any weapon used by the military.
Arguing in the alternative, the court then holds that even if the weapons affected by the FSA were protected by the Second Amendment, the FSA is nonetheless constitutional. To reach this conclusion, the court does several substantive due process backflips that, although mesmerizing, are without support.
The court first doubles back on its own prior decision in the same case to subject the FSA to “strict scrutiny,” the most demanding test known to constitutional law that requires the challenged law to be “narrowly tailored to achieve a compelling governmental interest.” Instead, the court opts for the less burdensome standard of “intermediate scrutiny,” which only requires the challenged law be “reasonably adapted to a substantial governmental interest.” This shift occurred because, for the 4th Circuit, there is apparently a marked difference between laws that prohibit “law-abiding citizens from possessing arms in their homes” (which the court “assumed” would be subject to strict scrutiny) and laws “burdening the right of self-defense in the home.”
On this wildly unsupported foundation, the court upholds the FSA, reasoning the law 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 (assuming your choice weapon for home defense is not, for example, the AR-15, as it is for nearly 5 million Americans). Furthermore, the court held the FSA “advances Maryland’s interest in reducing the harms caused by gun violence” because such weapons are “particularly attractive to mass shooters and other criminals” — even though rifles (including those not affected by the FSA) were responsible for a whopping 0.8 percent of all gun murders in Maryland, according to Federal Bureau of Investigation statistics.
The 4th Circuit should be ashamed. When a court puts politics and fearmongering above the rule of law, liberty dies. Gun violence myths and hypotheticals in extremis, however tragic, do not usurp the Constitution.
Thomas Wheatley is a regular contributor to All Opinions Are Local. Follow him on Twitter @TNWheatley.