Decision in Kolbe!

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04 Feb 2016 12:30 - 04 Feb 2016 13:02#1 by MXRider
Decision in Kolbe! was created by MXRider
On February 4, 2016, the court of appeals issued its decision. In a divided decision with Chief Judge Traxler and Judge Agee in the majority (Judge King dissented from this portion) the court first vacated the district court's decision upholding the AWB and the magazine limit, holding that these provisions were subject to strict scrutiny under the Second Amendment. Since the district court had applied a much less demand level of intermediate scrutiny, the court remanded the case to the district court for application of strict scrutiny in further proceedings. The case is thus not over. However, the strict scrutiny standard ruling will make it much more difficult for the State to prevail on remand. The State will have to show not only a compelling interest in public safety. Rather, as the court explained, strict scrutiny “requires the Government to prove that the restriction furthers a compelling interest and is narrowly tailored to achieve that interest” and that [t]o be narrowly tailored, the law must employ the least restrictive means to achieve the compelling government interest." Opinion page 34, citing United States v. Playboy Entertainment Group, Inc., 529 U.S. 803, 813 (2000). In contrast, intermediate scrutiny merely "requires the government to 'demonstrate . . . that there is a reasonable fit between the challenged regulation and a substantial government objective.'” (Id.). This is a *very* difficult standard to satisfy. As the dissenting opinion of Judge King noted, "though strict scrutiny may not be strict in theory, but fatal in fact,' see Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 237 (1995), it is at least 'the most demanding test known to constitutional law,' see City of Boerne v. Flores, 521 U.S. 507, 534 (1997)." Dissent at page 81. Equally significant was that the panel majority expressly went into conflict with the 7th Circuit's decision in See Friedman v. City of Highland Park, 784 F.3d 406, 414 (7th Cir. 2015), and the use of intermediate scrutiny by the D.C. Circuit to sustain an AWB in Heller v. District of Columbia (“Heller II”), 670 F.3d 1244, 1252 (D.C. Cir. 2011). Indeed, the panel majority relied extensively on the dissenting opinions published in those cases.

In separate parts of the court's decision, a different majority of the panel (Judge Agee and Judge King), the court held that the exemption for retired police officers did not violate equal protection. Judge Traxler dissented from this part of the opinion. Since this was a split decision on the issues, either party may file a petition for rehearing en banc and thus seek a decision by the entire Fourth Circuit, sitting en banc. Either party may also petition for certiorari with the Supreme Court, either from the original panel decision or from any decision of the en banc court. Further review is possible. However, such review is less likely where, as here, the court did not actually declare the AWB unconstitutional -- it merely remanded for further proceedings under a new standard. The panel majority only created a circuit conflict on the applicable standard of review, it did not create a conflict in the actual holdings on the constitutionality of the AWB. Conflicts are often reviewed en banc and by the Supreme Court, but that likelihood of further review is less where there is remand like this.

Below is a .pdf of the full decision

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Last edit: 04 Feb 2016 13:02 by MXRider.

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04 Feb 2016 12:40#2 by 6Pack
Replied by 6Pack on topic Decision in Kolbe!
:beer: :banana: :beer:

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04 Feb 2016 13:45#3 by MXRider
Replied by MXRider on topic Decision in Kolbe!
Given that this has been remanded back to the lower courts demanding strict scrutiny, what are the chances of getting a stay on the laws that are in existence?

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05 Feb 2016 11:16#4 by 6Pack
Replied by 6Pack on topic Decision in Kolbe!
That would be truwly awesome.

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08 Feb 2016 20:08#5 by gs8212
Replied by gs8212 on topic Decision in Kolbe!
I'm not surprised based on the law but I still didn't think we'd get this far with the courts. Just didn't think I'd see it. I'm really really pleased and appreciate so much your keeping us in the loop, MXRider.

Does anyone know if taking exception to the 7th, and also the DC AWB, means more likely to get the high court to take a case resolving the discrepancy?

Thx again for the update. .... Greg


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09 Feb 2016 18:03#6 by dblas
Replied by dblas on topic Decision in Kolbe!

gs8212 wrote: I'm not surprised based on the law but I still didn't think we'd get this far with the courts. Just didn't think I'd see it. I'm really really pleased and appreciate so much your keeping us in the loop, MXRider.

Does anyone know if taking exception to the 7th, and also the DC AWB, means more likely to get the high court to take a case resolving the discrepancy?

Thx again for the update. .... Greg


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There is now a split on the use of strict scrutiny, but it remains to be seen if SCOTUS will take the case if a Writ is requested.

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01 Mar 2016 07:46#7 by esqappellate
Replied by esqappellate on topic Decision in Kolbe!
All: Here is our counsel's response to the AG's petition for rehearing

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