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April 27, 2016
  Kolbe et al. v. Hogan et al. -- Fourth Circuit
Fourth Circuit Creates Circuit Split on Gun Control Issue--Next Stop the Supreme Court?

Areas of Law: Constitutional Law, Second Amendment

Issue Presented: Whether the assault rifles and high capacity magazines banned under the Firearm Safety Act were protected under the Second Amendment and whether Maryland's Firearm Safety Act is constitutional under the Second Amendment.

Brief Summary: Plaintiffs challenged the district court's finding that the Firearm Safety Act (FSA) is constitutional. The United States Court of Appeals for the Fourth Circuit found that the district court incorrectly used intermediate rather than strict scrutiny to evaluate the FSA. The Fourth Circuit, however, upheld the lower court's finding that there was no equal protection challenge to the FSA and that the FSA was not void for vagueness.

Extended Summary: Maryland passed the Firearm Safety Act (FSA), which bans approximately sixty types of assault rifles, their "copies," and high capacity magazines. The FSA carved out an exception for retired law enforcement personnel, who retained their service weapons upon retirement. Plaintiffs challenged the constitutionality of the FSA, claiming that the statute violated their Second Amendment right to bear arms. Plaintiffs also alleged that the statute was void for vagueness for failing to define what constituted a "copy," and raised an equal protection claim because of the difference in treatment between the average citizen and retired law enforcement personnel.

The district court upheld the FSA's ban on assault rifles as constitutional using intermediate scrutiny. The district court also denied the plaintiffs' claim that the term "copies" was void for vagueness. Finally, the court found that the average citizen and a retired law enforcement officer were differently situated and thus could be afforded different treatment without violating the Constitution.

The Fourth Circuit reviewed the issues de novo. The court first looked at whether assault rifles and high capacity magazines were subject to the protections of the Second Amendment. In order for Second Amendment protections to apply, the firearm in question must be 1) in common use, 2) commonly possessed by law abiding citizens for lawful use and 3) not dangerous and unusual. The court held that assault rifles and large capacity magazines are in common use by law abiding citizens for lawful purposes such as home defense, hunting, and target practice. It also held that the terms "dangerous and unusual" must be read together because all firearms are dangerous. Thus, for a firearm to be excluded from Second Amendment protection a firearm must be both dangerous and unusual. In this context, "unusual" meant "rare." The court held that assault rifles and high capacity magazines are not "dangerous and unusual." They are therefore subject to Second Amendment protection. Because assault rifles and high capacity magazines are subject to Second Amendment protections, the Fourth Circuit held that the FSA should have been reviewed using strict scrutiny rather than intermediate scrutiny and remanded for the district court to apply the correct standard. This decision creates a circuit split between the Fourth Circuit and the Second and District of Columbia Circuits.

The court affirmed the district court on the Equal Protection challenge. The court held that retired law enforcement officers are sufficiently different (and thus could be treated differently) from ordinary citizens so as to warrant different treatment in three ways: that law enforcement have a unique combination of training and experience that an ordinary citizen does not have, that law enforcement has a "special degree of trust" and will likely act to protect citizens, and that law enforcement faces increased threats as a result of their employment that the average citizen does not.

The court also affirmed the district court's holding that the statute was not void for vagueness. The court held that the term "copies" was easily understood by the average citizen as a weapon which was a replica of another.

Judge King dissented from Part III of the opinion, regarding the level of scrutiny that the statute warranted. Judge King disagreed with the majority's reading of "dangerous and unusual." Judge King believed assault rifles to be military-like and unusually dangerous. In Judge King's view, such weapons therefore do not qualify for Second Amendment protection. Judge King would have affirmed the District Court's use of intermediate scrutiny.

Chief Judge Traxler dissented from Part IV of the opinion. Chief Judge Traxler wrote that retired law enforcement officers are no differently situated from the ordinary citizenry and would have remanded the equal protection challenge for further review.

To read the full opinion click here.

Panel: Chief Judge Traxler and Judges King and Agee

Argument Date: 04/25/15

Date of Issued Opinion: 02/04/16

Docket Number: Case Nos. 14-1945

Decided: Affirmed in part, vacated in part, and remanded by published opinion

Case Alert Author: Kathleen DeNobile, Univ. of Maryland Carey School of Law

Counsel: ARGUED: John Parker Sweeney, BRADLEY ARANT BOULT CUMMINGS LLP, Washington, D.C., for Appellants. Matthew John Fader, OFFICE OF THE ATTORNEY GENERAL OF MARYLAND, Baltimore, Maryland, for Appellees. ON BRIEF: T. Sky Woodward, James W. Porter, III, Marc A. Nardone, BRADLEY ARANT BOULT CUMMINGS LLP, Washington, D.C., for Appellants. Douglas F. Gansler, Attorney General of Maryland, Jennifer L. Katz, Assistant Attorney General, OFFICE OF THE ATTORNEY GENERAL OF MARYLAND, Baltimore, Maryland, for Appellees. Kyle J. Bristow, BRISTOW LAW, PLLC, Clarkston, Michigan; Jason Van Dyke, THE VAN DYKE LAW FIRM, PLLC, Plano, Texas, for Amicus Traditionalist Youth Network, LLC. Patrick Morrisey, Attorney General, Elbert Lin, Solicitor General, Julie Marie Blake, Assistant Attorney General, OFFICE OF THE ATTORNEY GENERAL OF WEST VIRGINIA, Charleston, West Virginia, for Amicus State of West Virginia; Luther Strange, Attorney General of Alabama, Montgomery, Alabama, for Amicus State of Alabama; Michael C. Geraghty, Attorney General of Alaska, Juneau, Alaska, for Amicus State of Alaska; Thomas C. Horne, Attorney General of Arizona, Phoenix, Arizona, for Amicus State of Arizona; Pam Bondi, Attorney General of Florida, Tallahassee, Florida, for Amicus State of Florida; Lawrence G. Wasden, Attorney General of Idaho, Boise, Idaho, for Amicus State of Idaho; Derek Schmidt, Attorney General of Kansas, Topeka, Kansas, for Amicus State of Kansas; James D. Caldwell, Attorney General of Louisiana, Baton Rouge, Louisiana, for Amicus State of Louisiana; Bill Schuette, Attorney General of Michigan, Lansing, Michigan, for Amicus State of Michigan; Chris Koster, Attorney General of Missouri, Jefferson City, Missouri, for Amicus State of Missouri; Timothy C. Fox, Attorney General of Montana, Helena, Montana, for Amicus State of Montana; Jon Bruning, Attorney General of Nebraska, Lincoln, Nebraska, for Amicus State of Nebraska; Gary King, Attorney General of New Mexico, Santa Fe, New Mexico, for Amicus State of New Mexico; Wayne Stenehjem, Attorney General of North Dakota, Bismarck, North Dakota, for Amicus State of North Dakota; E. Scott Pruitt Attorney General of Oklahoma, Oklahoma City, Oklahoma, for Amicus State of Oklahoma; Alan Wilson, Attorney General of South Carolina, Columbia, South Carolina, for Amicus State of South Carolina; Martin J. Jackley, Attorney 4 General of South Dakota, Pierre, South Dakota, for Amicus State of South Dakota; Greg Abbott, Attorney General of Texas, Austin, Texas, for Amicus State of Texas; Sean Reyes, Attorney General of Utah, Salt Lake City, Utah, for Amicus State of Utah; Peter K. Michael, Attorney General of Wyoming, Cheyenne, Wyoming, for Amicus State of Wyoming; Jack Conway, Attorney General of Kentucky, Frankfort, Kentucky, for Amicus Commonwealth of Kentucky. Charles J. Cooper, David H. Thompson, Peter A. Patterson, COOPER & KIRK, PLLC, Washington, D.C., for Amicus National Rifle Association of America, Inc. C.D. Michel, Clinton B. Monfort, Anna M. Barvir, MICHEL & ASSOCIATES, P.C., Long Beach, California, for Amici CRPA Foundation, Gun Owners of California, Colorado State Shooting Association, Idaho State Rifle & Pistol Association, Illinois State Rifle Association, Kansas State Rifle Association, League of Kentucky Sportsmen, Inc., Nevada Firearms Coalition, Association of New Jersey Rifle & Pistol Clubs, New Mexico Shooting Sports Association, New York State Rifle & Pistol Association, Texas State Rifle Association, Vermont Federation of Sportsmen's Clubs, and Vermont Rifle & Pistol Association. Michael Connelly, U.S. JUSTICE FOUNDATION, Ramona, California, for Amicus U.S. Justice Foundation; Robert J. Olson, Herbert W. Titus, William J. Olson, John S. Miles, Jeremiah L. Morgan, WILLIAM J. OLSON, P.C., Vienna, Virginia, for Amici Gun Owners of America, Inc., Gun Owners Foundation, U.S. Justice Foundation, The Lincoln Institute for Research and Education, The Abraham Lincoln Foundation for Public Policy Research, Inc., Conservative Legal Defense and Education Fund, and Institute on the Constitution. Brian S. Koukoutchos, Mandeville, Louisiana; James B. Astrachan, ASTRACHAN GUNST THOMAS, P.C., Baltimore, Maryland, for Amici Congress of Racial Equality, National Center for Public Policy Research, Project 21, Pink Pistols, Women Against Gun Control, and The Disabled Sportsmen of North America. Dan M. Peterson, DAN M. PETERSON, PLLC, Fairfax, Virginia, for Amici The Law Enforcement Legal Defense Fund, Law Enforcement Action Network, Law Enforcement Alliance of America, International Law Enforcement Educators and Trainers Association, and Western States Sheriffs' Association. Jonathan K. Baum, Chicago, Illinois, Mark T. Ciani, KATTEN MUCHIN ROSENMAN LLP, New York, New York, for Amici Law Center to Prevent Gun Violence and Marylanders to Prevent Gun Violence, Inc. Jonathan E. Lowy, Kelly Sampson, BRADY CENTER TO PREVENT GUN VIOLENCE, Washington, D.C.; Elliott Schulder, Suzan F. Charlton, Amit R. Vora, Catlin Meade, Stephen Kiehl, COVINGTON & BURLING LLP, Washington, D.C., for Amicus Brady Center To Prevent Gun Violence. Barbara D. Underwood, Solicitor General, Anisha S. Dasgupta, Deputy Solicitor General, Claude S. Platton, Assistant Solicitor General, Eric T. Schneiderman, Attorney 5 General of the State of New York, for Amicus State of New York; Kamala D. Harris, Attorney General of California, Sacramento, California, for Amicus State of California; George Jepsen, Attorney General of Connecticut, Hartford, Connecticut, for Amicus State of Connecticut; Russell A. Suzuki, Attorney General of Hawaii, Honolulu, Hawaii, for Amicus State of Hawaii; Lisa Madigan, Attorney General of Illinois, Chicago, Illinois, for Amicus State of Illinois; Thomas J. Miller, Attorney General of Iowa, Des Moines, Iowa, for Amicus State of Iowa; Martha Coakley, Attorney General of Massachusetts, Boston, Massachusetts, for Amicus Commonwealth of Massachusetts; Ellen F. Rosenblum, Attorney General of Oregon, Salem, Oregon, for Amicus State of Oregon; Karl A. Racine, Attorney General of The District of Columbia, Washington, D.C., for Amicus The District of Columbia.

Author of Opinion:
Chief Judge Traxler on Parts I, II, III, V, and VI. Judge Agee on Part III

Dissenting Opinion: Judge King on Part III, and Chief Judge Traxler on Part IV

Case Alert Supervisor: Professor Renée Hutchins

Edited: 05/03/2016 at 12:28 PM by Renee Hutchins

    Posted By: Renee Hutchins @ 04/27/2016 02:51 PM     4th Circuit  

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