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Kolbe v. Hogan (Formerly Kolbe v. O'Malley)

What is the status of Kolbe v. Hogan and how did we get here?

  

The full name of the case currently pending before the Court of Appeals for the Fourth Circuit is Kolbe v. Hogan, No. 14-1945 (4th Cir.).  MSI is a named plaintiff in that case, along with several individuals, Stephen Kolbe, Andrew C. Turner, a couple of FFLs, Wink's Sporting Goods, Inc. and Atlantic Guns, Inc., and several other associations, including the AGC, the Maryland State Rifle and Pistol Association, the National Shooting Sports Foundation, Inc., and the Maryland Licensed Firearms Dealer Association.  The Governor is the named defendant in his ex officio capacity, and thus the name in the caption of the case automatically changes (by operation of the federal rules of appellate procedure) whenever the name of the governor of the state changes. .  The NRA also filed an amicus brief as a non-party.

 The suit was brought in federal district court in Baltimore and challenged the AWB and the 10 round magazine limit imposed by the Firearm Safety Act of 2013, arguing that these provisions violated the Second Amendment.  We have also argued that the ban on "copies" of the list of banned assault weapons is unconstitutionally vague.  The district court ruled in favor of Maryland and the appeal was filed.  As it currently stands, the appeal has been fully briefed and argued before a three-judge panel, sitting in Richmond.  The Fourth Circuit judges were Chief Judge William B. Traxler Jr., and Judges Robert B. King, and G. Steven Agee  The case was argued on March 25, 2015, and we await a decision by the court of appeals.  The tape of the oral argument is most interesting and can be accessed over the internet.  http://www.ca4.uscourts.gov/oral-argument/listen-to-oral-arguments

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 demanding 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 novel standard of review used by the 7th Circuit in 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), and by the Ninth Circuit to sustain a ban on standard capacity magazines in Fyock v. Sunnyvale, 779 F.3d 991, 996 (9th Cir. 2015).  The panel majority relied extensively on the dissenting opinions published in Friedman and Heller II and on the dissent by Justice Thomas in dissenting from the denial of certiorari in Friedman.

In separate parts of the court's decision, a different majority of the panel (Judge Agee and Judge King), held that the exemption for retired police officers did not violate equal protection.  Judge Traxler dissented from this part of the opinion.  The court unanimously held that the ban on copycat weapons was not so vague as to be unconstitutional under the Due Process Clause.  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 thus possible.  However, such further appellate review is less likely where, as here, the court did not actually declare the AWB unconstitutional -- it merely remanded the case for further proceedings under the strict scrutiny standard.  As the court stated, "[t]he State should be afforded the opportunity to develop its case in light of this more demanding standard, and Plaintiffs should be permitted to do so as well."  (Page 46).  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.  Circuit conflicts are often reviewed en banc and by the Supreme Court, but that likelihood of further review is less where there is simply a remand like this. 


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