Kolbe v. Hogan



Kolbe v. Hogan

Last week the 4th Circuit issued a decision in Kolbe v. Hogan.

This is a big deal.

Most of us that live in California have a very difficult time believing that there are anti-gun states that might actually have laws more draconian than our own.  Well… Maryland is a contender.

In Maryland they ban magazines capable of holding more than 10 rounds… we are all familiar with that… and they ban a whole class of weapons that they deem “assault weapons”.  Chief among those are the AR-15 and variants.

Maryland was sued based on the fact that their statute violates the Second Amendment as incorporated to the states via the Fourteenth Amendment through the Heller and McDonnell cases.

The district court sided with the State and said some surprising things.  First they stated that Magazines do not fall within the scope of protection afforded by the Second Amendment.  This is in line with the 9th Circuit ruling in Sunnyvale that magazines separate and distinct from firearms and as such can be regulated.

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The lower court in Maryland also stated (correctly) that the Second Amendment only protects weapons that are in common use and not ones that are “dangerous and unusual”.  Then the court went over the wire and found that AR-15’s are not in “common use”.


Well… the case was appealed to the 4th and last week they issued their opinion.

Essentially they stated that the lower court screwed the pooch.  First they stated that if the state is allowed to ban component parts of a firearm then they could essentially gut the entire meaning of a recognized fundamental right.

Why stop at magazines?

Why not make firing pins illegal.  Why not ban bolts and sights?

imagine if this were a a First Amendment case… :  Yes… you can write anything you want… The State completely understands the need for freedom of speech…but it is illegal to use words when writing.


The State cannot eviscerate  a fundamental right through shenanigans like that.

They also took the lower court to task on the idea of “common use”.  Essentially they stated that the sheer numbers of semi-automatic rifles that are sold each year make the argument that they are “unusual” sophomoric.  in dicta the court stated that individuals are left to make their own weapons choices… it is not the role or prevue of the State to suggest or demand a certain methodology for personal defense.

Then the biggie…. the Strict Scrutiny argument.

Appeals courts have since the Heller decision done their best to tweak the Second Amendment in such a way as to make the the right unenforceable.  The largest step towards the evisceration of the Second Amendment took place in the case of of US v. Marzzarella decided by the 3rd Circuit.

Rather than accepting the reasoning behind the Heller decision, they created a whole new test… we will call it “intermediate scrutiny” to see if a law violates the Second Amendment.

Ok… a civics reminder:  If someone enjoys a “fundamental right” and a law seeks to abrogate that right, then the court needs to apply a “test” to see if the law is Constitutional.  When it comes to fundamental rights, a limiting statute must be based on a “compelling State interest”, and there must be “no less restrictive alternatives.”.

This test is called a “Strict Scrutiny” analysis, and generally speaking no statues or ordinances are going to survive the test.   After all, there are always “less restrictive alternatives”.

If the right in question is not a “fundamental right” then a lesser test can be employed.  As long as there is a “rational basis” for the law, and the application is not “arbitrary and capricious” the law limiting the exercise of the “non-fundamental right” will be upheld.

The problem is that the Supremes recognized the Second Amendment as a Fundamental Right in Heller.

The 3rd Circuit started using what they call an intermediate level of review in Marzzarella, and many of the other Circuits adopted that test.  Much to the dismay of Justice Clarence Thomas in a dissent issued last year.

The 4th Circuit essentially agreed with Thomas last week, and said that the appropriate level of review of these laws is Strict Scrutiny.

We now have a flat out, 100% split among the Circuits.

These are usually the types of cases that the Supremes love to hear since it is necessary for us as a nation to philosophically be on the same page so to speak.  We can’t have fundamental rights protected in one Circuit and not in another.

We shall see within the next few months how this plays out… but Freedom got a little stronger last week. 


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