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March 27, 2017
  Kolbe, et al. v. Hogan, et al. -- Fourth Circuit
Assault Weapons and Large-Capacity Magazines Fall Outside Second Amendment Protections

Areas of Law: Constitutional Law; Fourteenth Amendment; Second Amendment

Issues Presented: Whether the Firearm Safety Act of 2013 violates the Second Amendment by imposing restrictions on assault weapons and large-capacity magazines. Whether the Firearm Safety Act of 2013 violates the Equal Protection Clause of the Fourteenth Amendment by providing an exception for retired Maryland law enforcement officers. Whether the restriction against "copies" of assault weapons set forth in the Firearm Safety Act of 2013 violates the Due Process Clause of the Fourteenth Amendment by being too vague to provide adequate notice of the proscribed conduct.

Brief Summary: In a published en banc opinion, the United States Court of Appeals for the Fourth Circuit affirmed the District Court's judgment and held that the Firearm Safety Act of 2013 ("FSA") does not violate the Second and Fourteenth Amendments. First, the Fourth Circuit concluded that assault weapons and large-capacity magazines constitute weapons of war and therefore are not protected by the Second Amendment. Second, assuming that assault weapons and large-capacity magazines are protected by the Second Amendment, the FSA withstands intermediate scrutiny on the basis that it advances the compelling state interest in public safety by reducing the availability of such equipment. Third, the Fourth Circuit held that the FSA's exception for retired Maryland law enforcement officers does not violate the Fourteenth Amendment's Equal Protection Clause, because retired police officers are not situated similarly with members of the general public. Finally, the Fourth Circuit concluded that the FSA's ban against "copies" of assault weapons provides adequate notice of the conduct proscribed and therefore does violate the Due Process Clause of the Fourteenth Amendment.

Judge Wilkinson issued a concurrence emphasizing that the state legislature is best positioned to address issues of gun violence. Judge Diaz issued an opinion concurring in part, concluding that the FSA withstands constitutional scrutiny. Judge Traxler issued a dissenting opinion, in which he contended that the Second Amendment's protections include assault weapons and large-capacity magazines and that the FSA fails to withstand strict scrutiny. Finally, Judge Traxler issued an opinion dissenting in part and concurring in part, in which he asserted that the FSA violated the Fourteenth Amendment's Equal Protection Clause but did not violate the Fourteenth Amendment's Due Process Clause.

Extended Summary: In response to the rise in mass shootings and gun violence, the Maryland General Assembly enacted the Firearm Safety Act of 2013 ("FSA"). The FSA bans assault rifles and shotguns ("assault weapons"), as well as "copies" of assault weapons. The FSA also places restrictions on detachable large-capacity magazines. The FSA provides an exception for retired Maryland law enforcement officers in certain circumstances.

In September of 2013, a group of Maryland residents and firearms dealers ("Appellants") filed suit for declaratory and injunctive relief against Governor Lawrence Hogan, Jr., Attorney General Brian Frosh, Colonel William Pallozzi of the Maryland State Police, and the Maryland State Police (collectively, the "State"). Appellants alleged that (1) the restrictions on assault weapons and large-capacity magazines violated the Second Amendment; (2) the FSA's exception for retired Maryland law enforcement officers violated the Equal Protection Clause of the Fourteenth Amendment; and (3) the FSA's restrictions on "copies" of assault weapons was vague and thus violated the Due Process Clause of the Fourteenth Amendment. The District Court upheld the FSA, applying intermediate scrutiny on review. On appeal, a divided three-judge panel of the Fourth Circuit vacated the District Court's judgment and remanded the case with directions to reevaluate the statute using strict scrutiny.

After granting a rehearing en banc, the Fourth Circuit affirmed the District Court's judgment and held that the FSA does not violate the Second or Fourteenth Amendments. Citing the Supreme Court's decision in District of Columbia v. Heller, 554 U.S. 570 (2008), the full court first concluded that the banned assault weapons and large-capacity magazines constitute "exceptionally lethal weapons of war" beyond the Second Amendment's reach, as demonstrated by their overwhelming use in mass shootings and other acts of gun violence.

Moreover, the Fourth Circuit held that, assuming the FSA-banned equipment is entitled to Second Amendment protection, the FSA nonetheless withstood the appropriate intermediate scrutiny standard of review. Concluding that the FSA does not severely burden the right of citizens to use arms for self-defense in the home, the Fourth Circuit applied intermediate scrutiny to determine whether the FSA was "reasonably adapted to a substantial governmental interest." First, the Fourth Circuit emphasized that the State has a substantial and compelling interest in protecting its citizenry and the public safety. Second, the Fourth Circuit reasoned that the FSA will reasonably advance the State's interest by reducing the overall availability of assault weapons and large-capacity magazines for use in mass shootings, criminal acts, and accidents.

Turning to the Appellants' Fourteenth Amendment claims, the Fourth Circuit rejected the Appellants' argument that retired Maryland law enforcement officers are similarly situated to members of the public. Unlike members of the public, police officers receive extensive specialized training related to the use of assault weapons, use of force, and harm reduction. The Fourth Circuit also rejected Appellants' argument that the FSA's restrictions against "copies" of assault weapons are unconstitutionally vague, emphasizing Maryland's prior use of the term "copies" in firearms statutes. The Attorney General and Maryland State Police have also provided guidance related to what constitutes a "copy" of a weapon.

In a concurring opinion joined by Judge Wynn, Judge Wilkinson concluded the FSA should be upheld in its entirety in no small part because the state legislature is best positioned to address the issue of gun violence. Judge Wilkinson further determined that striking the FSA would impair the state legislature's ability to prevent future tragedies and "would deliver a body blow to democracy as we have known it since the very founding of this nation." Judge Diaz also wrote a separate opinion concurring in part, in which he asserted that the Court need only hold that the FSA passes constitutional scrutiny under the Second Amendment.

Judge Traxler issued a dissenting opinion, joined by Judges Niemeyer, Shedd, and Agee. Applying a "common use" analysis, Judge Traxler contended that assault weapons and large-capacity magazines deserve Second Amendment protection due to the "statistically significant number of American citizens" that possess FSA-banned equipment for lawful purposes. In Judge Traxler's view, strict scrutiny applies against the FSA, because the FSA imposes a severe burden upon citizens' ability to purchase commonly possessed firearms for use in their homes for self-defense. Specifically, the dissent reasoned that citizens should have a choice of desired firearm. Semi-automatic rifles and large-capacity magazines, for example, may enhance an anxious homeowner's ability to protect against a home invader by eliminating reload time and providing greater accuracy.

Finally, Judge Traxler issued a second opinion dissenting in part and concurring in part. Judge Traxler dissented from the majority's opinion on the equal protection claim for reasons set forth in the now-vacated panel opinion. Finally, he concurred in the majority's judgment that the FSA did not violate the Due Process Clause of the Fourteenth Amendment.

To read the full opinion, click here.

Panel: Chief Judge Gregory, and Judges Wilkinson, Niemeyer, Motz, Traxler, King, Shedd, Agee, Keenan, Wynn, Diaz, Floyd, Thacker, and Harris

Argument Date: 05/11/2016

Date of Issued Opinion: 02/21/2017

Docket Numbers: No. 14-1945

Decided: Affirmed by published opinion.

Case Alert Author: Linda Morris, 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. Brian E. Frosh, 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, Erica N. Peterson, Gilbert Dickey, Assistant Attorneys 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 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, John D. Ohlendorf, 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 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. J. Adam Skaggs, Mark Anthony Frasetto, EVERYTOWN FOR GUN SAFETY, New York, New York; Deepak Gupta, Jonathan E. Taylor, Neil K. Sawhney, GUPTA WESSLER PLLC, Washington, D.C., for Amicus Everytown for Gun Safety.

Author of Opinion: Judge King

Concurring Opinion: Judge Wilkinson

Opinion Concurring in Part: Judge Diaz

Dissenting Opinion: Judge Traxler

Opinion Dissenting in Part and Concurring in Part: Judge Traxler

Case Alert Supervisor: Professor Renée Hutchins

    Posted By: Renee Hutchins @ 03/27/2017 01:13 PM     4th Circuit  

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