# Kolbe v. Hogan: Fourth Circuit Says Strict Scrutiny Applies to Second Amendment Infringing Laws **URL:** \ **Category:** Great Debates\ **Created:** [February 6, 2016, 2:24am UTC](https://boards.straightdope.com/t/kolbe-v-hogan-fourth-circuit-says-strict-scrutiny-applies-to-second-amendment-infringing-laws/745291 "2016-02-06T02:24:06Z")\ **Posts on this page:** 20\ **Page:** 1
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [February 6, 2016, 2:24am UTC](https://boards.straightdope.com/t/kolbe-v-hogan-fourth-circuit-says-strict-scrutiny-applies-to-second-amendment-infringing-laws/745291/1 "2016-02-06T02:24:06Z")
Really, it’s all in the title. The panel said that the Second Amendment is entitled to strict scrutiny. They also rebuked the dissenter for suggesting that the majority bore some responsibility for future mass shootings. This is a split with the Seventh Circuit, who had explicitly said that intermediate scrutiny was the correct standard. Good job, Fourth Circuit! Maryland AG says he’ll appeal. Boo, Maryland AG! ---
**Author:** ![Nelson\_Pike](https://avatars.discourse-cdn.com/v4/letter/n/c6cbf5/32.png) [@Nelson\_Pike](https://boards.straightdope.com/u/Nelson_Pike)\ **Post date:** [February 6, 2016, 2:31am UTC](https://boards.straightdope.com/t/kolbe-v-hogan-fourth-circuit-says-strict-scrutiny-applies-to-second-amendment-infringing-laws/745291/2 "2016-02-06T02:31:19Z")
> [@Bricker](#): > > Really, it’s all in the title. The panel said that the Second Amendment is entitled to strict scrutiny. They also rebuked the dissenter for suggesting that the majority bore some responsibility for future mass shootings. > > This is a split with the Seventh Circuit, who had explicitly said that intermediate scrutiny was the correct standard. > > Good job, Fourth Circuit! Maryland AG says he’ll appeal. Boo, Maryland AG! You’re the Legal Eagle, right? So how about telling us a little about WTH “scrutiny” is. (My google arm is tired). ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [February 6, 2016, 3:42am UTC](https://boards.straightdope.com/t/kolbe-v-hogan-fourth-circuit-says-strict-scrutiny-applies-to-second-amendment-infringing-laws/745291/3 "2016-02-06T03:42:31Z")
In a nutshell, scrutiny refers to how strong the law’s justification must be. For example, suppose I am aggrieved that my state’s laws punish speeding more harshly than running a red light. I argue that this treats red light runners too easily and unfairly penalizes speeders. I might sue to vindicate this view, asking the courts to overturn the laws fining speeders so harshly. I won’t have a good chance of winning. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [February 6, 2016, 3:47am UTC](https://boards.straightdope.com/t/kolbe-v-hogan-fourth-circuit-says-strict-scrutiny-applies-to-second-amendment-infringing-laws/745291/4 "2016-02-06T03:47:27Z")
Hit send too soon! Why won’t I win? Because the courts address a law’s classification of speeders vs red light runners very deferentially, asking only if the legislature could have discerned a rational relationship between the law and a legitimate government interest. That standard, “rational basis,” is the lowest, most deferential level of scrutiny. In contrast, strict scrutiny is the most exacting standard. To pass strict scrutiny review, a court must determine whether the law is narrowly tailored to achieve a compelling government interest. ---
**Author:** ![Bone](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/bone/32/407_2.png) [@Bone](https://boards.straightdope.com/u/Bone)\ **Post date:** [February 6, 2016, 7:03am UTC](https://boards.straightdope.com/t/kolbe-v-hogan-fourth-circuit-says-strict-scrutiny-applies-to-second-amendment-infringing-laws/745291/5 "2016-02-06T07:03:26Z")
I posted a bit more exerpts and depth here: > [@Positive Gun News of the Day](https://boards.straightdope.com/t/positive-gun-news-of-the-day/735490/466): > > 4th Circuit Court of Appeals decision in[Kolbe v. Hogan.](http://www.ca4.uscourts.gov/Opinions/Published/141945.P.pdf) > > At issue was the Maryland Firearms Safety Act (FSA) which was a feature based assualt weapon ban, specific rifle and pistol ban, and a ban on magazines with a capacity greater than 10 rounds. It exempted _retired police_ from many of the provisions as well. At the district level, the court applied intermediate scrutiny and somehow upheld the FSA. The reasoning was, paraphrasing, because it wasn’t a total ban and other firearms were available, then it was permissible. In addition, the district court concluded that magazine were not firearms and therefore were not covered by the 2nd amendment. The case was appealed to the 4th circuit. From the opinion: > > > [@](#): > > > > In our view, Maryland law implicates the core protection of > > the Second Amendment—“the right of law-abiding responsible > > 7 > > citizens to use arms in defense of hearth and home,” District of > > Columbia v. Heller, 554 U.S. 570, 635 (2008), and we are > > compelled by Heller and McDonald v. City of Chicago, 561 U.S. > > 742 (2010), as well as our own precedent in the wake of these > > decisions, to conclude that the burden is substantial and strict > > scrutiny is the applicable standard of review for Plaintiffs’ > > Second Amendment claim. **Thus, the panel vacates the district > > court’s denial of Plaintiffs’ Second Amendment claims and > > remands for the district court to apply strict scrutiny.** > > (my bold) > Sent back down to the district level so they can apply the correct level of scrutiny. If this holds, I’m optimistic that the FSA will fall. The ruling could go en banc or go to SCOTUS, but for now this is a big win. > > Some of the key ideas the opinion focused on were the concepts of “dangerous \*\*and \*\*unusual” and “in common use”. This court determined that a firearm must be both dangerous AND unusual, else it would fall under the 2nd amendment. In addition, it noted that the AR-15 platform semi-automatic rifle is the most common rifle today: > > > [@](#): > > > > We think it is beyond dispute from the record before us, > > which contains much of the same evidence cited in the > > aforementioned decisions, that law-abiding citizens commonly > > possess semi-automatic rifles such as the AR-15. Between 1990 > > and 2012, more than 8 million AR- and AK-platform semi-automatic > > rifles alone were manufactured in or imported into the United > > States. J.A. 1877. In 2012, semi-automatic sporting rifles > > accounted for twenty percent of all retail firearms sales. J.A. > > 22 > > 1880. For perspective, we note that in 2012, the number of ARand > > AK-style weapons manufactured and imported into the United > > States was more than double the number of Ford F-150 trucks > > sold, the most commonly sold vehicle in the United States. > > … > > Likewise, the record in this case shows unequivocally that > > LCMs are commonly kept by American citizens, as there are more > > than 75 million such magazines in circulation in the United > > States.\*\* In fact, these magazines are so common that they are > > standard\*\*. > > (my bold) > The court was dismissive of this so called “high capacity” claim. > > The court also expressly rejected the argument that other types of weapons were available so the ban was okay. It cited Heller calling this frivalous and chided other circuits for adopting this reasoning that was specifically rejected in Heller. > > The court did however uphold the exemption for retired police, defeating the equal protection claim. This part I think was wrong - retired police have no special power or duty that regular citizens have and there is basis to support exempting this class of people from any law. > > I did enjoy this retort to the dissent: > > > [@](#): > > > > Our distinguished dissenting colleague asserts that we have > > imprudently and unnecessarily broken with our sister courts of > > appeal and infers that we will bear some responsibility for > > future mass shootings. In our view, inferences of this nature > > have no place in judicial opinions and we will not respond > > beyond noting this. > > Is this a judicial F U? ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [February 6, 2016, 9:10am UTC](https://boards.straightdope.com/t/kolbe-v-hogan-fourth-circuit-says-strict-scrutiny-applies-to-second-amendment-infringing-laws/745291/6 "2016-02-06T09:10:32Z")
Nice. I looked for a thread but did not check the on-going threads. Thanks, **Bone**. ---
**Author:** ![Nelson\_Pike](https://avatars.discourse-cdn.com/v4/letter/n/c6cbf5/32.png) [@Nelson\_Pike](https://boards.straightdope.com/u/Nelson_Pike)\ **Post date:** [February 6, 2016, 2:06pm UTC](https://boards.straightdope.com/t/kolbe-v-hogan-fourth-circuit-says-strict-scrutiny-applies-to-second-amendment-infringing-laws/745291/7 "2016-02-06T14:06:58Z")
“This court determined that a firearm must be both dangerous AND unusual” What kind of reasoning is this? ALL FIREARMS ARE DANGEROUS. The court deserves no respect on this note. ---
**Author:** ![Bone](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/bone/32/407_2.png) [@Bone](https://boards.straightdope.com/u/Bone)\ **Post date:** [February 6, 2016, 3:28pm UTC](https://boards.straightdope.com/t/kolbe-v-hogan-fourth-circuit-says-strict-scrutiny-applies-to-second-amendment-infringing-laws/745291/8 "2016-02-06T15:28:45Z")
> [@Nelson\_Pike](#): > > “This court determined that a firearm must be both dangerous AND unusual” > > What kind of reasoning is this? ALL FIREARMS ARE DANGEROUS. The court deserves no respect on this note. Rather than go through a detailed explanation, I note that this language stems from the 2008 Heller decision. It is thoroughly explained there. The 4th circuit merely adopted existing precedent with the “dangerous and unusual” criteria. I’ve been harping on the conjunctive “and” for years. ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [February 6, 2016, 3:40pm UTC](https://boards.straightdope.com/t/kolbe-v-hogan-fourth-circuit-says-strict-scrutiny-applies-to-second-amendment-infringing-laws/745291/9 "2016-02-06T15:40:30Z")
Are there any rights explicitly guaranteed by the constitution that DON’T need to pass strict scrutiny? Without giving it a great deal of thought, my first reaction would be: Any right explicitly guaranteed by the constitution better damn well deserve strict scrutiny! After all, what the hell do we have a constitution for, if not to limit the powers of the federal government? n.b.: I’m not a 2nd amendment defender, and would just as well see it end up in the dustbin of history. But as long as it’s still there, in the constitution, I don’t want to see it treated as if it were already in said dustbin. ---
**Author:** ![Nelson\_Pike](https://avatars.discourse-cdn.com/v4/letter/n/c6cbf5/32.png) [@Nelson\_Pike](https://boards.straightdope.com/u/Nelson_Pike)\ **Post date:** [February 6, 2016, 4:27pm UTC](https://boards.straightdope.com/t/kolbe-v-hogan-fourth-circuit-says-strict-scrutiny-applies-to-second-amendment-infringing-laws/745291/10 "2016-02-06T16:27:28Z")
> [@Bone](#): > > Rather than go through a detailed explanation, I note that this language stems from the 2008 Heller decision. It is thoroughly explained there. The 4th circuit merely adopted existing precedent with the “dangerous and unusual” criteria. > > I’ve been harping on the conjunctive “and” for years. “Detailed explanation”? You mean _any_ explanation, even a concise one. Here is the full text of the decision: [District of Columbia v. Heller 554 U.S. 570 (2008)](https://supreme.justia.com/cases/federal/us/554/570/opinion.html) I have skimmed the majority opinion without catching anything about “dangerous and unusual.” Maybe some kind person can guide me to it. ---
**Author:** ![Bone](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/bone/32/407_2.png) [@Bone](https://boards.straightdope.com/u/Bone)\ **Post date:** [February 6, 2016, 4:31pm UTC](https://boards.straightdope.com/t/kolbe-v-hogan-fourth-circuit-says-strict-scrutiny-applies-to-second-amendment-infringing-laws/745291/11 "2016-02-06T16:31:44Z")
> [@John\_Mace](#): > > Are there any rights explicitly guaranteed by the constitution that DON’T need to pass strict scrutiny? Without giving it a great deal of thought, my first reaction would be: Any right explicitly guaranteed by the constitution better damn well deserve strict scrutiny! After all, what the hell do we have a constitution for, if not to limit the powers of the federal government? > > n.b.: I’m not a 2nd amendment defender, and would just as well see it end up in the dustbin of history. But as long as it’s still there, in the constitution, I don’t want to see it treated as if it were already in said dustbin. Well, John - you should be a defender 🙂 Levels of scrutiny are determined by the magnitude of implication of the right. Even the 1st doesn’t enjoy strict scrutiny in all aspects (content neutral for example). ---
**Author:** ![Bone](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/bone/32/407_2.png) [@Bone](https://boards.straightdope.com/u/Bone)\ **Post date:** [February 6, 2016, 4:32pm UTC](https://boards.straightdope.com/t/kolbe-v-hogan-fourth-circuit-says-strict-scrutiny-applies-to-second-amendment-infringing-laws/745291/12 "2016-02-06T16:32:57Z")
> [@Nelson\_Pike](#): > > “Detailed explanation”? You mean _any_ explanation, even a concise one. > > Here is the full text of the decision: > > [District of Columbia v. Heller 554 U.S. 570 (2008)](https://supreme.justia.com/cases/federal/us/554/570/opinion.html) > > I have skimmed the majority opinion without catching anything about “dangerous and unusual.” Maybe some kind person can guide me to it. Detailed != concise. I recommend ctrl +F. ---
**Author:** ![Nelson\_Pike](https://avatars.discourse-cdn.com/v4/letter/n/c6cbf5/32.png) [@Nelson\_Pike](https://boards.straightdope.com/u/Nelson_Pike)\ **Post date:** [February 6, 2016, 4:33pm UTC](https://boards.straightdope.com/t/kolbe-v-hogan-fourth-circuit-says-strict-scrutiny-applies-to-second-amendment-infringing-laws/745291/13 "2016-02-06T16:33:00Z")
> [@Bricker](#): > > Hit send too soon! > > Why won’t I win? Because the courts address a law’s classification of speeders vs red light runners very deferentially, asking only if the legislature could have discerned a rational relationship between the law and a legitimate government interest. That standard, “rational basis,” is the lowest, most deferential level of scrutiny. > > In contrast, strict scrutiny is the most exacting standard. To pass strict scrutiny review, a court must determine whether the law is narrowly tailored to achieve a compelling government interest. Thank you for the explanation. Like John Mace my first reaction would be concern if I were to learn that all constitution matters were not treated with strict scrutiny. ---
**Author:** ![Nelson\_Pike](https://avatars.discourse-cdn.com/v4/letter/n/c6cbf5/32.png) [@Nelson\_Pike](https://boards.straightdope.com/u/Nelson_Pike)\ **Post date:** [February 6, 2016, 4:47pm UTC](https://boards.straightdope.com/t/kolbe-v-hogan-fourth-circuit-says-strict-scrutiny-applies-to-second-amendment-infringing-laws/745291/14 "2016-02-06T16:47:38Z")
> [@Bone](#): > > Detailed != concise. Incorrect. “Expressing much in few words” is not the same as " comprehensive, full, complete, minute, particular, specific, extensive, exact, thorough, meticulous, exhaustive, all-embracing, itemized, encyclopedic, blow-by-blow". I recommend: [Concise](http://www.thefreedictionary.com/concise) [Detailed](http://www.thefreedictionary.com/detailed) ---
**Author:** ![Bone](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/bone/32/407_2.png) [@Bone](https://boards.straightdope.com/u/Bone)\ **Post date:** [February 6, 2016, 4:49pm UTC](https://boards.straightdope.com/t/kolbe-v-hogan-fourth-circuit-says-strict-scrutiny-applies-to-second-amendment-infringing-laws/745291/15 "2016-02-06T16:49:47Z")
> [@Nelson\_Pike](#): > > Incorrect. “Expressing much in few words” is not the same as " comprehensive, full, complete, minute, particular, specific, extensive, exact, thorough, meticulous, exhaustive, all-embracing, itemized, encyclopedic, blow-by-blow". > > I recommend: > > [Concise](http://www.thefreedictionary.com/concise) > > [Detailed](http://www.thefreedictionary.com/detailed) Do you know what “!=” means? Real question. ---
**Author:** ![Nelson\_Pike](https://avatars.discourse-cdn.com/v4/letter/n/c6cbf5/32.png) [@Nelson\_Pike](https://boards.straightdope.com/u/Nelson_Pike)\ **Post date:** [February 6, 2016, 4:57pm UTC](https://boards.straightdope.com/t/kolbe-v-hogan-fourth-circuit-says-strict-scrutiny-applies-to-second-amendment-infringing-laws/745291/16 "2016-02-06T16:57:27Z")
> [@Bone](#): > > Do you know what “!=” means? Real question. The exclamation point? It signifies emphasis, as in “What a question!” ---
**Author:** ![Nelson\_Pike](https://avatars.discourse-cdn.com/v4/letter/n/c6cbf5/32.png) [@Nelson\_Pike](https://boards.straightdope.com/u/Nelson_Pike)\ **Post date:** [February 6, 2016, 5:06pm UTC](https://boards.straightdope.com/t/kolbe-v-hogan-fourth-circuit-says-strict-scrutiny-applies-to-second-amendment-infringing-laws/745291/17 "2016-02-06T17:06:22Z")
Now that I’ve thought about it some more I realize “cursory” would have been a better choice for me to have used, “cursory” being closer than “concise” to “no explanation.” ---
**Author:** ![Bone](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/bone/32/407_2.png) [@Bone](https://boards.straightdope.com/u/Bone)\ **Post date:** [February 6, 2016, 5:09pm UTC](https://boards.straightdope.com/t/kolbe-v-hogan-fourth-circuit-says-strict-scrutiny-applies-to-second-amendment-infringing-laws/745291/18 "2016-02-06T17:09:43Z")
> [@Nelson\_Pike](#): > > The exclamation point? It signifies emphasis, as in “What a question!” No, you are mistaken. It means “[does not equal](http://https://en.m.wikipedia.org/wiki/List_of_mathematical_symbols)” I recommend you read the full Heller opinion if you are interested in this topic. It is no virtue to be ignorant of the controlling legal precedent on this topic. ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [February 6, 2016, 5:11pm UTC](https://boards.straightdope.com/t/kolbe-v-hogan-fourth-circuit-says-strict-scrutiny-applies-to-second-amendment-infringing-laws/745291/19 "2016-02-06T17:11:53Z")
Levels of scrutiny are determined by the magnitude of implication of the right. Even the 1st doesn’t enjoy strict scrutiny in all aspects (content neutral for example). [/QUOTE] Can you clarify the “content neutral” aspect? I would expect that any infringement on political speech would have to pass strict scrutiny, no? I’m not talking about issues of time and place, but political content. ---
**Author:** ![Bone](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/bone/32/407_2.png) [@Bone](https://boards.straightdope.com/u/Bone)\ **Post date:** [February 6, 2016, 5:16pm UTC](https://boards.straightdope.com/t/kolbe-v-hogan-fourth-circuit-says-strict-scrutiny-applies-to-second-amendment-infringing-laws/745291/20 "2016-02-06T17:16:15Z")
> [@John\_Mace](#): > > Levels of scrutiny are determined by the magnitude of implication of the right. Even the 1st doesn’t enjoy strict scrutiny in all aspects (content neutral for example). Can you clarify the “content neutral” aspect? I would expect that any infringement on political speech would have to pass strict scrutiny, no? I’m not talking about issues of time and place, but political content. [/QUOTE] I’m on my phone so I’ll respond later if the question is till outstanding. The wiki article on scrutiny has many examples. [Next page](https://boards.straightdope.com/t/kolbe-v-hogan-fourth-circuit-says-strict-scrutiny-applies-to-second-amendment-infringing-laws/745291.md?page=2)