The Volokh Conspiracy
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Today the 4th Circuit decided Kolbe v. Hogan, a Second Amendment challenge to a 2013 Maryland arms prohibition statute. The statute bans the sale of firearm magazines that hold more than 10 rounds and also bans many firearms, by labeling them as "assault weapons." In a 2-1 decision written by Chief Judge Traxler, the Fourth Circuit held that strict scrutiny is the proper standard of review for bans on common arms, such as those at issue in Kolbe. The case was remanded to the district court, which had applied the wrong standard, namely a weak version of intermediate scrutiny. The Maryland attorney general announced that he will seek en banc or Supreme Court reversal of the Kolbe decision. Below is a summary of the most important parts of the Kolbe decision.
Why the arms are part of the Second Amendment
Magazines holding more than 10 rounds are "common" and "standard." There are more than 75 million of them in the United States. Indeed, "most pistols are manufactured with magazines holding ten to 17 rounds." In fact, "Virtually every federal court to have addressed this question" has found that magazines over 10 rounds are in "common use," and thus are covered by the Second Amendment.
Maryland had argued that the Second Amendment does not apply to magazines because magazine are not firearms. The Fourth Circuit disagreed because "Maryland's logic" would "circumvent Heller." Governments could de facto ban guns "simply by prohibiting possession of individual components of a handgun, such as the firing pin. . . . In our view, 'the right to possess firearms for protection implies a corresponding right' to possess component parts necessary to make the firearms operable."
In the "two step test" created by the 3rd Circuit (U.S. v. Marzzarella, 2010) and adopted by the 4th Circuit (U.S. v. Chester, 2010) and many others, the first step is to determine whether the statute implicates the Second Amendment. In step one, "it is the government's burden to establish that a particular weapon or activity falls outside the scope of the Second Amendment right." The Maryland attorney general did not even come close. There was no historical tradition of bans on semiautomatics or magazines. "In fact, the Supreme Court, in a pre-Heller decision, hinted at the opposite, stating that 'certain categories of guns,' such as 'machineguns, sawed-off shotguns, and artillery pieces,' have a 'quasi-suspect character,' but that 'guns falling outside those categories traditionally have been widely accepted as lawful possessions.' Staples v. United States, 511 U.S. 600, 611-12 (1994)." Indeed, the Staples opinion was about the AR-15 rifle, which is among the many firearms banned by the Maryland statute.
Why strict scrutiny is appropriate
First, because the prohibition "burdens the availability and use of a class of arms for self-defense in the home, where the protection afforded by the Second Amendment is at its greatest."
Second, because the burden is substantial, "not merely incidental." For example, the statute imposes "a complete ban" on "AR-15 style rifles-the most popular class of centerfire semi-automatic rifles in the United States." Notably, the ban "also reaches every instance where an AR-15 platform semi-automatic rifle or LCM [large capacity magazine] might be preferable to handguns or bolt-action rifles-for example hunting, recreational shooting, or competitive marksmanship events, all of which are lawful purposes protected by the Constitution."
Strict scrutiny was also appropriate for the magazine ban, because "a citizen's ability to defend himself and his home is enhanced with an LCM." For example, the inherent difficulties of some defense situations mean that citizens often need the ability to fire multiple shots, and changing magazines while under violent attack may not be possible.
A statute that "completely prohibits, not just regulates, an entire category of weaponry . . . might be 'equivalent to a ban on a category of speech.'" (Quoting D.C. Circuit Judge Kavanaugh's dissent in the Heller II case.) The extensive prohibition is "akin to a law that 'foreclose[s] an entire medium of expression.' City of Ladue v. Gilleo, 512 U.S. 43, 55 (1994). Such laws receive exceptionally rigorous review in the analogous context of the First Amendment, id., and we see no reason for a different method here."
Unlike some other courts that have upheld magazine and firearms bans, the Kolbe majority did not purport to be expert in gun-fighting tactics, or to claim that judges know what law-abiding citizens "need" for self-defense. To the contrary, the 4th Circuit recognized that under the Second Amendment and Heller, choices about self-defense are reserved to the defenders. For "whatever reason" particular arms are preferred by particular law-abiding citizens, "The right to self-defense is largely meaningless if it does not include the right to choose the most effective means of defending oneself. . . . The extent of danger-real or imagined-that a citizen faces at home is a matter only that person can assess in full." (Quoting 7th Circuit Judge Manion's dissent in Friedman v. Highland Park).
The Maryland attorney general had argued that Heller's "common use" test means that particular types of arms are covered by the Second Amendment only if they are frequently fired in self-defense. Kolbe answered that the issue is not how often an arms type is "actually used to repel an intruder." Rather, the question is whether the arms "are 'typically possessed by law-abiding citizens for lawful purposes' as a matter of history and tradition." (Quoting Heller). "Actual use in self-defense is a poor measure of whether a particular firearm is 'typically possessed by law-abiding citizens' for self-defense, as it is unlikely most people will ever need to actually discharge a firearm in self-defense."
The Maryland attorney general had argued that the burden on self-defense was minimal, because other firearms were still available. All courts that have upheld bans have adopted this argument. But the Fourth Circuit pointed out that this contradicts Heller: "the fact that handguns, bolt-action and other manually-loaded long guns, and, as noted earlier, a few semi-automatic rifles are still available for self-defense does not mitigate this burden. . . . Indeed, the Supreme Court rejected essentially the same argument in Heller-that the District of Columbia's handgun ban did not unconstitutionally burden the right to self-defense because the law permitted the possession of long guns for home defense."
'Dangerous and unusual'
Heller stated that "dangerous and unusual" weapons can be prohibited. As examples, the court pointed to sawed-off shotguns and machine guns. Creatively, the Maryland attorney general has argued that the Second Amendment does not apply to arms that are "unusually dangerous." But the 4th Circuit said that this contradicted Heller, which had "focused on whether the weapons were typically or commonly possessed, not whether they reached or exceeded some undefined level of dangerousness."
Further, Heller had used the "dangerous and unusual" term "conjunctively, suggesting that even a dangerous weapon may enjoy constitutional protection if it is widely employed for lawful purposes, i.e., not unusual."
Besides, if being "too dangerous" meant that various common arms are outside the Second Amendment, then a handgun ban would be upheld, since "most murders in America are committed with handguns."
Addressing the dissent
"Our distinguished dissenting colleague asserts that we have imprudently and unnecessarily broken with our sister courts of appeal and infers that we will bear some responsibility for future mass shootings. In our view, inferences of this nature have no place in judicial opinions and we will not respond beyond noting this. The meaning of the Constitution does not depend on a popular vote of the circuits and it is neither improper nor imprudent for us to disagree with the other circuits addressing this issue. We are not a rubber stamp. We require strict scrutiny here not because it aligns with our personal policy preferences but because we believe it is compelled by the law set out in Heller and Chester."
Chief Judge Traxler, author of the Kolbe opinion, was appointed in 1998 by President Clinton, as was dissenting Judge King. The chief judge's opinion was joined by Judge Agee, appointed in 2008 by President George W. Bush.