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Understanding Kolbe v. Hogan and what it means for gun owners in the United States of America.

The U.S. Court of Appeals for the Fourth Circuit seems to go against the U.S. Supreme Court in its latest gun related decision.

The United States Court of Appeals for the Fourth Circuit, sitting en banc, ruled that Maryland’s ban on assault-style weapons is constitutional, overturning the 2016 panel decision which found that the ban placed a substantial burden on the right to bear arms.  This Fourth Circuit decision comes from the case of Kolbe v. Hogan, which challenged the ban back in 2013.  The case follows in the footsteps of the Supreme Court decision in District of Columbia v. Heller, but those critical of the ruling believe it to be in direct contradiction of the landmark second amendment decision.

In response to the Sandy Hook shooting and other mass shootings around the United States, the General Assembly of Maryland saw it necessary to enact the Firearm Safety Act of 2013 (FSA).  This law bans the popular AR-15 rifle as well as other “assault-style” rifles and shotguns.   Additionally, the law bans the sale and transfer of large capacity magazines (LCMs).

The law specifically provides that a person may not “transport an assault weapon into the state” nor “possess, sell, offer to sell, transfer, purchase, or receive an assault weapon.”  These banned “assault weapons” include “assault long-guns” and “copycat” weapons.  The law defines assault long-guns as any of the weapons listed in Marlyand’s Public Safety Article.  Over 40 weapons are listed in §5-101 of the Public Safety Article as “assault long-guns,” including all variants of the AK-47, AR-15s and their imitations, and Daewoo USAS 12-guage semi-automatic shotguns.

“The law reaches more than just the listed weapons.  The ban also encapsulates any ‘copy’ of the listed weapons.”

The law reaches more than just the listed weapons.  The ban also encapsulates any “copy” of the listed weapons.  Copycat weapons are defined as “semiautomatic centerfire rifles that can accept a detachable magazine” and has two of the following: “a folding stock, a grenade launcher or flare launcher, or a flash suppressor.”  This section of the law effectively bans any military-styled rifle or shotgun that is not a .22 caliber.

Also banning LCMs, the FSA provides that “a person may not manufacture, sell, offer for sale, purchase, receive, or transfer a detachable magazine that has a capacity of more than ten rounds of ammunition.”  A detachable magazine is a device that feeds ammunition into the chamber of a firearm.  This auto-loading tool allows for semi-automatic weapons to fire at a faster rate by removing the need for the operator of the firearm to load ammunition into the weapon manually.

The LCM ban is significant in that it essentially bans many types of handguns.  For example, Glock G-17s and G-19s, some of the most commonly owned handguns in the United States, come standard with a seventeen round capacity magazine.  Handguns, which have been found to be protected by the second amendment in the Heller decision, are now provided no protection under the FSA if they have a magazine that holds more than ten rounds of ammunition.  The Washington Post reported that there are more than seventy-five million LCMs in the United States.

“Any person who violates this law is subject to up to three years imprisonment and/or a fine not exceeding $5,000.”

Any person who violates this law is subject to up to three years imprisonment and/or a fine not exceeding $5,000.  If a person uses an assault weapon or LCM in the commission of a felony or violent crime, a much stiffer penalty is mandatory, potentially leading to a maximum of 25 years imprisonment.

The plaintiffs who brought this action are two Maryland residents and several Maryland firearms dealers.  The plaintiffs asserted that but for the enacting of the FSA, they would purchase assault weapons and LCMs.  The lawsuit alleges the FSA is facially unconstitutional in four ways: “the assault weapons ban contravenes the Second Amendment, the prohibition against large capacity magazines also violates the Second Amendment, the provision allowing receipt and possession of assault weapons and large capacity magazines by retired Maryland law enforcement officers contravenes the Equal Protections Clause of the Fourteenth Amendment, and the provision outlawing ‘copies’ of the rifles and shotguns enumerated . . . violates the Fourteenth Amendment’s Due Process Clause by being too vague to provide adequate notice of the conduct proscribed.”

The United States District Court for the District of Maryland applied intermediate level scrutiny to the law, finding that it was indeed constitutional because it furthers an important government interest by means that are substantially related to that interest.  In February of 2016, hearing an appeal from the District Court, a Fourth Circuit panel consisting of Chief Judge Traxler and Circuit Judges King and Agee found that the District Court applied the incorrect level of scrutiny.  In their 2-1 decision, the panel held that the District Court should have applied strict scrutiny.  The panel decision vacated the District Court’s ruling, finding that assault weapons and LCMs are indeed protected by the Second Amendment.

A month after the panel decision, the Fourth Circuit decided to rehear the case en banc.  On February 21, 2017, the Fourth Circuit Court of Appeals found, like the District Court, that the FSA’s ban on assault weapons and LCMs is indeed constitutional.  The court found that the weapons and magazines implicated by the FSA are most suited towards military use rather than civilian use.

“The Fourth Circuit majority, attempting to stay in line with the Heller holding, found that the weapons and LCMs banned by the FSA are dangerous and unusual because they are ‘exceptionally lethal weapons of war.’”

The Heller decision stated that the Second Amendment does not extend protection to weapons which are “dangerous and unusual.”  The Fourth Circuit majority, attempting to stay in line with the Heller holding, found that the weapons and LCMs banned by the FSA are dangerous and unusual because they are “exceptionally lethal weapons of war.”  Rather than follow the common-use test as proscribed by Heller, the Fourth Circuit created what seems to be a “most useful in military service” test.

The phrase “most useful in military service” is not new to Second Amendment cases.  The late Justice Scalia, writing the majority opinion in Heller, indeed stated that “weapons that are most useful in military service, M-16 rifles and the like, may be banned.”  This court has taken that statement and is treating it as the primary test to determine whether Second Amendment protection is required.  The problem with taking this statement and forming it into a rule is that Heller already set forth the “dangerous and unusual” and “common use” tests.  The dissenting judges believe the two tests put forth by Heller should control in this case.

“It is intent, not actual use, which determines if a weapon is protected by the Second Amendment.”

The four judges who dissented assert that the assault weapons and LCMs subject to the FSA are in common use for lawful purposes.  Circuit Judge Traxler, who wrote the opinion for the 2016 Fourth Circuit panel which found the FSA to be unconstitutional, stated that “as long as a weapon chosen is one commonly possessed by the American people for lawful purposes, and the rifles here most certainly are, the state has very little say about whether its citizens should keep it in their homes for protection.”  This is an argument that comes directly from the Heller decision.  In Heller, the Supreme Court stated that the “common use” test is not determined by how often the weapons are typically used to fend off intruders, but whether they are “typically possessed by law-abiding citizens for lawful purposes as a matter of history and tradition.”  It is intent, not actual use, which determines if a weapon is protected by the Second Amendment.

Assuming the plaintiffs will not give up after this defeat, the next step will be the Supreme Court of the United States.  With the recent passing of Antonin Scalia, the Court’s current stance on a Heller-like case would likely result in a 4-4 decision.  President Trump’s nomination of Neil Gorsuch, who is thought to be a constitutional originalist like Justice Scalia, would be the deciding vote.  There is no guarantee the Supreme Court would agree to hear this case, but the Fourth Circuit’s circumvention from Heller should weigh heavily in its decision.

Blake Drewry
About Blake Drewry (9 Articles)
Blake Drewry is a third year law student and serves as an Associate Editor for the Campbell Law Observer. Originally from Courtland, Virginia, Blake received his undergraduate degree from East Carolina University where he majored in Political Science and Philosophy. His legal interests include sports and entertainment law, campaign finance, and agriculture. The summer after his 1L year, he worked for General Counsel at the North Carolina Department of Agriculture.