# 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:** 4
**Author:** ![Richard\_Parker](https://avatars.discourse-cdn.com/v4/letter/r/35a633/32.png) [@Richard\_Parker](https://boards.straightdope.com/u/Richard_Parker)\ **Post date:** [February 8, 2016, 3:07pm UTC](https://boards.straightdope.com/t/kolbe-v-hogan-fourth-circuit-says-strict-scrutiny-applies-to-second-amendment-infringing-laws/745291/61 "2016-02-08T15:07:42Z")
> [@Bricker](#): > > No, but Sec 2 vitiates the broad guarantees that “Equal Protection” might otherwise convey. Ok. We don’t need to go too far afield here. It is sufficient to observe that your defense of this principle requires that you believe that modern Equal Protection jurisprudence is all wrong. So for readers who do not believe that modern Equal Protection Clause is a nullity, they should feel free to disregard this argument that sex discrimination is a penumbral right like abortion and unlike the right to own an AR-15. > [@Bricker](#): > > Hang on. The AR-15 is an armament. That makes it literally covered by the text. Sex discrimination isn’t, because – as just repeated above – the “equal protection” phrase was never intended to convey equal protection on the basis of sex. For an AR-15 to be literally covered by the text, it has appear in the text. What appears in the text is the word “arms.” The scope of that term depends on what definition you pick. You choose a scope of that vague term that includes AR-15s, but does not include lots of other weapons. Other reasonable people choose different scopes. All of this is even more true when it comes to your interpretation of the individual right to own them, carry them on the streets, not carry them when you’re mentally incompetent, etc. This is the improper conservative move I am identifying. You don’t just belief that your inferences from the text are more legitimate than other inferences, you believe they aren’t inferences at all! And, really, you’re compelled to make that illegitimate move, because if you admitted that they were inferences subject to reasonable debate based on the rest of the text and the meaning of the principles the framers chose to embed in the text, you give up the whole ballgame in which you pretend that your preferred jurists are mere umpires calling balls and strikes. > [@Bricker](#): > > And before you again raise the rampart of civil vs. political rights, that distinction itself does not appear in the text. You can’t rely on it to prove that other things not in the text are within the ambit of first-order protection. The text just says equal protection under the law. You are the one arguing certain things about what that means and doesn’t mean based on Section 2. And in rebuttal of that intertextual inference, I am pointing out that your assumptions about the connection between the two sections is incorrect. ---
**Author:** ![Richard\_Parker](https://avatars.discourse-cdn.com/v4/letter/r/35a633/32.png) [@Richard\_Parker](https://boards.straightdope.com/u/Richard_Parker)\ **Post date:** [February 8, 2016, 3:14pm UTC](https://boards.straightdope.com/t/kolbe-v-hogan-fourth-circuit-says-strict-scrutiny-applies-to-second-amendment-infringing-laws/745291/62 "2016-02-08T15:14:28Z")
> [@Bone](#): > > Doesn’t the mere fact that the right is enumerated indicate that the framers believed those rights to be more important than the rights they did not enumerate? Enumerated, yes. Explicit, no. Do you think the Framers thought that free speech was less important than excessive fines? I doubt it. But they were more specific as to excessive fines than they were free speech, partly because of the nature of the concepts. It is also not the case that the rights in Kolbe are somehow explicit where the other rights I’m discussing (other than abortion, perhaps) are not. The argument is that somehow “The right to bear arms” is an explicit grant of a right for all non-felon, non-incompetent people to own an AR-15 (but not a fully automatic one!), but “free speech” is not an explicit grant of the right to have the government not put you in a free speech zone at a parade and “equal protection” is not an explicit grant of the right not to have the government treat you differently because you have a vagina. I think that’s BS. > [@Bone](#): > > Since you think that should fail under intermediate scrutiny, I am assuming you think they erred as well. Yes. > [@Bone](#): > > But here it seems you are re-arguing Heller. No. I’m merely arguing that Heller did not follow from simply having fifty random people on the street read the literal meaning of the Second Amendment. It required sophisticated argument about purposes and inferences. ---
**Author:** ![Richard\_Parker](https://avatars.discourse-cdn.com/v4/letter/r/35a633/32.png) [@Richard\_Parker](https://boards.straightdope.com/u/Richard_Parker)\ **Post date:** [February 8, 2016, 3:17pm UTC](https://boards.straightdope.com/t/kolbe-v-hogan-fourth-circuit-says-strict-scrutiny-applies-to-second-amendment-infringing-laws/745291/63 "2016-02-08T15:17:09Z")
> [@UltraVires](#): > > When in the very next section of this amendment, it allows discrimination in voting rights, reading the separate clauses of the amendment _in pari materia_, it clearly does not mean what the left thinks it means. You disagree? I don’t think you understand the civil-political distinction. ---
**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 8, 2016, 3:55pm UTC](https://boards.straightdope.com/t/kolbe-v-hogan-fourth-circuit-says-strict-scrutiny-applies-to-second-amendment-infringing-laws/745291/64 "2016-02-08T15:55:42Z")
> [@Richard\_Parker](#): > > No. I’m merely arguing that Heller did not follow from simply having fifty random people on the street read the literal meaning of the Second Amendment. It required sophisticated argument about purposes and inferences. I’m responding out of order for clarity. I agree with this - at the federal level the 2nd was contentious and required interpretation and argument about purposes and inferences. I think most of this was based on definitions, and once those definitions were established then the conclusion followed. Heller addressed what “arms” were. It defined the scope of “the people”. It clarified what “keep” means, and less so what “bear” means. It talked about the separate prefatory and operative clauses. It’s not like the constitution had a definition section like modern legislation so of course this required analysis in Heller. But once those definitions were established, this like “arms”, then I think it’s obvious that AR-15 type rifles fit within the scope of the 2nd. At the district level the state argued that AR-15 type rifles did not fall within the scope of the 2nd amendment. That’s ludicrous. Here’s what I don’t know - could the appellate court simply have reversed the district court’s judgment and say that they somehow got it wrong, and the bans should fail? I got the impression the appellate court did not have the option to do this, that based on how the appellate process worked, it wasn’t as if the appellate court was reviewing the issues fresh and since the district court drew a conclusion under intermediate scrutiny, the appellate court couldn’t simply say they got it wrong - they had to identify something they got procedurally wrong. I think there is a phrase for this but I can’t recall (help me out here :)). If that’s the case, is it a stretch to think they mandated strict scrutiny as a way to send it back to the district? > [@](#): > > Enumerated, yes. Explicit, no. Do you think the Framers thought that free speech was less important than excessive fines? I doubt it. But they were more specific as to excessive fines than they were free speech, partly because of the nature of the concepts. Yes I think this is right - but I’m less persuaded by direct comparisons in this fashion between different rights. I think comparing analytical frameworks is viable, but once more detailed comparisons are made it gets more wobbly. But I don’t think it’s as clear as you’ve stated the distinction between interpretive and instrumental methods. You’ve attributed motive where that need not be the case, and in doing switched from one category to the other. > [@](#): > > It is also not the case that the rights in Kolbe are somehow explicit where the other rights I’m discussing (other than abortion, perhaps) are not. The argument is that somehow “The right to bear arms” is an explicit grant of a right for all non-felon, non-incompetent people to own an AR-15 (but not a fully automatic one!), but “free speech” is not an explicit grant of the right to have the government not put you in a free speech zone at a parade and “equal protection” is not an explicit grant of the right not to have the government treat you differently because you have a vagina. > I think that’s BS. Are you saying that other restrictions on arms are not consistent with 2nd amendment analysis, or that 2nd amendment analysis is not consistent with 1st and 14th amendment analysis, or a mix of both? The limits to the 2nd amendment for felons, incompetent people are based on different principles. Felons are prohibited as a type of punishment. We imprison people as punishment, a much greater infringement on their liberty so the fact that a person becomes prohibited from firearms doesn’t seem inconsistent with that notion. Now there are efforts to provide an avenue to certain felons to regain their right to arms, but they don’t have a strong lobbying block. For non-incompetent people the rationale is different, but has some similarities. Minors are restricted from certain activities based on their lower level of maturity and understanding - the same would hold for incompetent people. Prohibitions on arms are consistent with the restrictions on these folks in many other arenas. I agree these limits are not explicit, but I think these restrictions may hold under strict scrutiny as well. But since many of these restrictions came about prior to the current 2nd amendment analytical framework, there would have to be widespread legislation or litigation to change them. As for full auto limits under the NFA and GCA, I think those would fail under strict scrutiny, and they should. But it doesn’t make sense to litigate the NFA before other items are taken down. I just don’t think there is widespread support for machine gun ownership. ---
**Author:** ![Richard\_Parker](https://avatars.discourse-cdn.com/v4/letter/r/35a633/32.png) [@Richard\_Parker](https://boards.straightdope.com/u/Richard_Parker)\ **Post date:** [February 8, 2016, 4:16pm UTC](https://boards.straightdope.com/t/kolbe-v-hogan-fourth-circuit-says-strict-scrutiny-applies-to-second-amendment-infringing-laws/745291/65 "2016-02-08T16:16:22Z")
> [@Bone](#): > > But once those definitions were established, this like “arms”, then I think it’s obvious that AR-15 type rifles fit within the scope of the 2nd. I agree. But I had understood the argument in favor of strict scrutiny to be about how explicit the right was in the Constitution, rather than how explicit it is in the doctrine. So I figured we were really talking about _Heller_ not _Kolbe_ in that sub-discussion. > [@Bone](#): > > Here’s what I don’t know - could the appellate court simply have reversed the district court’s judgment and say that they somehow got it wrong, and the bans should fail? They could have found that intermediate scrutiny was the correct test but that the lower court misapplied it. The appellate/trial distinction is between findings of fact and conclusions of law. Application of a standard is a mixed question of law and fact, but so long as they arrive at a different conclusion from the same set of facts, they are free to do whatever they wish on the law. Even as to the facts, they can find differently if they find that there was clear error. > [@Bone](#): > > Yes I think this is right - but I’m less persuaded by direct comparisons in this fashion between different rights. I agree. In fact, it’s sort of my point. I don’t think there is any viable way to objectively argue about how “distant” a given application of free speech law is from the text of the Constitution as compared to the distance of a given application of Second Amendment law. And therefore I reject the notion that you can treat them differently based on that differential distance. [I know you raised other issues in this post, but I’m a little shorter on time this morning, so I’ll have to revisit them later if I have a chance.] ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [February 8, 2016, 8:01pm UTC](https://boards.straightdope.com/t/kolbe-v-hogan-fourth-circuit-says-strict-scrutiny-applies-to-second-amendment-infringing-laws/745291/66 "2016-02-08T20:01:07Z")
> [@Bone](#): > > It talked about the separate prefatory and operative clauses. It’s not like the constitution had a definition section like modern legislation so of course this required analysis in Heller. To be clear, it _made up_ the idea that there was a prefatory clause (though in general I think the decision was correct). > [@](#): > > The dissent doesn’t think the 2nd is implicated, but even if it is, rather than conduct an analysis of what level of scrutiny is applicable, it merely identifies the fact that SCOTUS hasn’t established a scrutiny flowchart yet so the lowest one is the correct one. It points to other circuits, a hardy “me too!” indeed. That’s lazy. The lowest level of scrutiny is rational basis. Lawyers tend to say “fundamental rights limitations are subject to strict scrutiny” as a sort of shorthand. But we don’t mean it. As **Richard** pointed out, there are a number of unquestionably fundamental rights (including arguably the most fundamental, speech) which are not always or even often entitled to strict scrutiny. Without actually saying so, the _Heller_ majority seems to have pointed us to intermediate scrutiny. Language like “a right to keep and carry any weapon whatsoever in any manner” sounds very much like the sort of wording that SCOTUS has used to uphold speech restrictions (such as Holmes’ “fire in a crowded theater” example from _Schenck v. United States_). I don’t really have a position on whether the law would pass intermediate scrutiny since I haven’t looked at it closely. ---
**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 8, 2016, 9:00pm UTC](https://boards.straightdope.com/t/kolbe-v-hogan-fourth-circuit-says-strict-scrutiny-applies-to-second-amendment-infringing-laws/745291/67 "2016-02-08T21:00:33Z")
> [@Really\_Not\_All\_That\_Bright](#): > > To be clear, it _made up_ the idea that there was a prefatory clause (though in general I think the decision was correct). No. The prefatory clause existed at the amendment’s adoption - it’s right there. That part is explicit. > [@](#): > > The lowest level of scrutiny is rational basis. Yes, but not for 2nd amendment analysis. Heller eliminated the use of rational basis for 2nd amendment purposes: > [@Heller Opinion](#): > > Justice Breyer correctly notes that this law, like almost all laws, would pass rational-basis scrutiny. Post, at 8. But rational-basis scrutiny is a mode of analysis we have used when evaluating laws under constitutional commands that are themselves prohibitions on irrational laws. See, e.g., Engquist v. Oregon Dept. of Agriculture, 553 U. S. \_\_\_, \_\_\_ (2008) (slip op., at 9–10). In those cases, “rational basis” is not just the standard of scrutiny, but the very substance of the constitutional guarantee. \*\*Obviously, the same test could not be used to evaluate the extent to which a legislature may regulate a specific, enumerated right, be it the freedom of speech, the guarantee against double jeopardy, the right to counsel, or the right to keep and bear arms. \*\*See United States v. Carolene Products Co., 304 U. S. 144 , n. 4 (1938) (“There may be narrower scope for operation of the presumption of constitutionality [i.e., narrower than that provided by rational-basis review] when legislation appears on its face to be within a specific prohibition of the Constitution, such as those of the first ten amendments…”). If all that was required to overcome the right to keep and bear arms was a rational basis, the Second Amendment would be redundant with the separate constitutional prohibitions on irrational laws, and would have no effect. (my bold) > [@RNATB](#): > > Without actually saying so, the _Heller_ majority seems to have pointed us to intermediate scrutiny. Language like “a right to keep and carry any weapon whatsoever in any manner” sounds very much like the sort of wording that SCOTUS has used to uphold speech restrictions (such as Holmes’ “fire in a crowded theater” example from _Schenck v. United States_). > > I don’t really have a position on whether the law would pass intermediate scrutiny since I haven’t looked at it closely. I don’t think this is supportable from Heller: > [@Heller Opinion](#): > > ``` > As the quotations earlier in this opinion demonstrate, the inherent right of self-defense has been central to the Second Amendment right. The handgun ban amounts to a prohibition of an entire class of “arms” that is overwhelmingly chosen by American society for that lawful purpose. The prohibition extends, moreover, to the home, where the need for defense of self, family, and property is most acute. **Under any of the standards of scrutiny** that we have applied to enumerated constitutional rights,27 banning from the home “the most preferred firearm in the nation to ‘keep’ and use for protection of one’s home and family,” 478 F. 3d, at 400, would fail constitutional muster. > > ``` (my bold) Under any standard of scrutiny, Heller says. This doesn’t point to any specific level, other than to foreclose on rational basis elsewhere in the opinion. The opinion also discusses the difference between a total destruction of the right, and other types of restrictions. Here there is support for different levels of scrutiny based on the magnitude of the implication of the right. Notice here Heller also highlights enumerated constitutional rights that we’ve talked about in this thread. I do think it’s important to note the phrase “most acute” which implies the right applies outside the home, just not as acutely. Perhaps within the home strict scrutiny, and outside the home intermediate scrutiny. After the phrases “dangerous and unusual”, “in common use” are litigated, coming up for future litigation will be “bear” and “most acute”. ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [February 8, 2016, 9:02pm UTC](https://boards.straightdope.com/t/kolbe-v-hogan-fourth-circuit-says-strict-scrutiny-applies-to-second-amendment-infringing-laws/745291/68 "2016-02-08T21:02:49Z")
“Under any standard of scrutiny” supports my point. Why bother making that case if you are adopting strict scrutiny? > [@Bone](#): > > No. The prefatory clause existed at the amendment’s adoption - it’s right there. That part is explicit. The words are right there. The idea that they are “prefatory” runs counter to our entire history of constitutional jurisprudence, which has always held that no constitutional language is “mere surplusage.” That, and there is no other amendment which SCOTUS has ignored bits of by calling them prefatory. ---
**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 8, 2016, 9:08pm UTC](https://boards.straightdope.com/t/kolbe-v-hogan-fourth-circuit-says-strict-scrutiny-applies-to-second-amendment-infringing-laws/745291/69 "2016-02-08T21:08:29Z")
> [@Really\_Not\_All\_That\_Bright](#): > > “Under any standard of scrutiny” supports my point. Why bother making that case if you are adopting strict scrutiny? My guess is because it wasn’t necessary to reach a conclusion (restraint and all that) and they needed the votes. I also think the level will vary by the type of restriction - this type of language allows that. You could make a similar statement about types of speech - find some speech that is clearly protected under any and all circumstances, and say, ‘under any standard of scrutiny, advocating by an individual for a proposed election measure may not be restricted’ while still reserving the right to use varying levels of scrutiny depending on a more specific or different fact pattern. > [@](#): > > The words are right there. The idea that they are “prefatory” runs counter to our entire history of constitutional jurisprudence, which has always held that no constitutional language is “mere surplusage.” That, and there is no other amendment which SCOTUS has ignored bits of by calling them prefatory. Ok - but no other amendment is written with the same construction so it’s not like there are direct comparisons so the fact that there isn’t like cases of treatment isn’t persuasive. As Heller indicated, the prefatory clause informs our understanding - not surplusage. ---
**Author:** ![YogSothoth](https://avatars.discourse-cdn.com/v4/letter/y/8edcca/32.png) [@YogSothoth](https://boards.straightdope.com/u/YogSothoth)\ **Post date:** [February 8, 2016, 9:18pm UTC](https://boards.straightdope.com/t/kolbe-v-hogan-fourth-circuit-says-strict-scrutiny-applies-to-second-amendment-infringing-laws/745291/70 "2016-02-08T21:18:53Z")
Its too bad. With so many issues liberalizing, guns stand out as an issue where the trend is going backwards. So many people now think that we’re in some kind of Wild West scenario, where everyone has to be armed or its some infringement of their rights and we can’t hold people responsible for shooting because being scared is a legitimate reaction to the changing world ---
**Author:** ![DrDeth](https://avatars.discourse-cdn.com/v4/letter/d/b487fb/32.png) [@DrDeth](https://boards.straightdope.com/u/DrDeth)\ **Post date:** [February 8, 2016, 9:59pm UTC](https://boards.straightdope.com/t/kolbe-v-hogan-fourth-circuit-says-strict-scrutiny-applies-to-second-amendment-infringing-laws/745291/71 "2016-02-08T21:59:14Z")
> [@Bone](#): > > No, you are mistaken. > > It means “[does not equal](http://https://en.m.wikipedia.org/wiki/List_of_mathematical_symbols)” In can, but in the way you used it, could be either. In any case, why couldnt you be arsed to type out _“does not”_? ---
**Author:** ![DrDeth](https://avatars.discourse-cdn.com/v4/letter/d/b487fb/32.png) [@DrDeth](https://boards.straightdope.com/u/DrDeth)\ **Post date:** [February 8, 2016, 10:01pm UTC](https://boards.straightdope.com/t/kolbe-v-hogan-fourth-circuit-says-strict-scrutiny-applies-to-second-amendment-infringing-laws/745291/72 "2016-02-08T22:01:29Z")
> [@Miller](#): > > You think “!=” is arcane? Not in math, no. But in context of “Detailed != concise” where only a space makes the phrase mean the opposite, it is arcane and unclear. ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [February 8, 2016, 10:01pm UTC](https://boards.straightdope.com/t/kolbe-v-hogan-fourth-circuit-says-strict-scrutiny-applies-to-second-amendment-infringing-laws/745291/73 "2016-02-08T22:01:41Z")
> [@Bone](#): > > My guess is because it wasn’t necessary to reach a conclusion (restraint and all that) and they needed the votes. I also think the level will vary by the type of restriction - this type of language allows that. You could make a similar statement about types of speech - find some speech that is clearly protected under any and all circumstances, and say, ‘under any standard of scrutiny, advocating by an individual for a proposed election measure may not be restricted’ while still reserving the right to use varying levels of scrutiny depending on a more specific or different fact pattern. True. But if anything, judicial restraint requires the court to address the issue actually presented rather than some hypothetical future situation. > [@YogSothoth](#): > > Its too bad. With so many issues liberalizing, guns stand out as an issue where the trend is going backwards. So many people now think that we’re in some kind of Wild West scenario, where everyone has to be armed or its some infringement of their rights and we can’t hold people responsible for shooting because being scared is a legitimate reaction to the changing world Well, maybe that means we (liberals) are on the wrong side of an issue for once. ---
**Author:** ![Inner\_Stickler](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/inner_stickler/32/318_2.png) [@Inner\_Stickler](https://boards.straightdope.com/u/Inner_Stickler)\ **Post date:** [February 8, 2016, 10:16pm UTC](https://boards.straightdope.com/t/kolbe-v-hogan-fourth-circuit-says-strict-scrutiny-applies-to-second-amendment-infringing-laws/745291/74 "2016-02-08T22:16:32Z")
> [@DrDeth](#): > > Not in math, no. But in context of “Detailed != concise” where only a space makes the phrase mean the opposite, it is arcane and unclear. What a stupid nit to pick, especially after the two involved parties have settled their differences. For what it’s worth, while I tend toward either \<\> or /= for ‘does not equal’, Bone’s usage was perfectly understandable to me. ---
**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 8, 2016, 10:46pm UTC](https://boards.straightdope.com/t/kolbe-v-hogan-fourth-circuit-says-strict-scrutiny-applies-to-second-amendment-infringing-laws/745291/75 "2016-02-08T22:46:50Z")
> [@DrDeth](#): > > In can, but in the way you used it, could be either. In any case, why couldnt you be arsed to type out _“does not”_? I was on my phone. It’s also why I messed up the wiki link originally. You see the “m.wik…” when I tried to link it. I think it’s odd anyone could take the opposite meaning in context. That would mean I didn’t understand the meaning of fairly common words. ---
**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 8, 2016, 10:50pm UTC](https://boards.straightdope.com/t/kolbe-v-hogan-fourth-circuit-says-strict-scrutiny-applies-to-second-amendment-infringing-laws/745291/76 "2016-02-08T22:50:41Z")
> [@Really\_Not\_All\_That\_Bright](#): > > True. But if anything, judicial restraint requires the court to address the issue actually presented rather than some hypothetical future situation. Well yes. That’s why I don’t think they did an exhaustive analysis of levels of scrutiny because it wasn’t necessary to decide the issue presented. At question in Heller was a total ban on handguns. In this case, it’s a ban on a different type of arm. I would have been just as happy if they struck down the AWB in this case and stated the same reason as Heller, that a total ban on a class of arms is impermissible under any level of scrutiny. That would be consistent as well. Instead, this court did adopt a scrutiny analysis and determined strict scrutiny was the appropriate level. This also fits within the framework of Heller, but does go a bit farther than SCOTUS did. I think that’s appropriate as long as the appellate court acts within the confines SCOTUS laid out. ---
**Author:** ![YogSothoth](https://avatars.discourse-cdn.com/v4/letter/y/8edcca/32.png) [@YogSothoth](https://boards.straightdope.com/u/YogSothoth)\ **Post date:** [February 8, 2016, 10:53pm UTC](https://boards.straightdope.com/t/kolbe-v-hogan-fourth-circuit-says-strict-scrutiny-applies-to-second-amendment-infringing-laws/745291/77 "2016-02-08T22:53:27Z")
> [@Really\_Not\_All\_That\_Bright](#): > > Well, maybe that means we (liberals) are on the wrong side of an issue for once. Could be, anything’s possible. But I’ll believe it when there is unrestricted and fair discourse without appeals to emotional bullshit and we can actually have a debate about the issues. One of my most useful, to me, topics I’ve ever made was near when I first started here. After a few particularly annoying gun debates, I made a topic asking people to debate gun control without resorting to slippery slope crap. That was short-lived but fun, and very telling. Anyway, I don’t think liberals are wrong on guns. I may personally prefer to ban guns but the vast majority of liberals and Americans simply want them regulated. There’s no logical reason why there cannot be sane controls on this type of item as there is on literally every single other thing that can be sold. Really, guns, nothing else in this vast economy, cannot be regulated? It doesn’t pass the smell test, the premise is silly on its face. But gun advocates fight like their lives depending on us not moving the conversation forward ---
**Author:** ![DrDeth](https://avatars.discourse-cdn.com/v4/letter/d/b487fb/32.png) [@DrDeth](https://boards.straightdope.com/u/DrDeth)\ **Post date:** [February 8, 2016, 10:53pm UTC](https://boards.straightdope.com/t/kolbe-v-hogan-fourth-circuit-says-strict-scrutiny-applies-to-second-amendment-infringing-laws/745291/78 "2016-02-08T22:53:42Z")
> [@Bone](#): > > I was on my phone. It’s also why I messed up the wiki link originally. You see the “m.wik…” when I tried to link it. I think it’s odd anyone could take the opposite meaning in context. That would mean I didn’t understand the meaning of fairly common words. which is what you more or less accused Nelson of, so…? ---
**Author:** ![DrDeth](https://avatars.discourse-cdn.com/v4/letter/d/b487fb/32.png) [@DrDeth](https://boards.straightdope.com/u/DrDeth)\ **Post date:** [February 8, 2016, 10:56pm UTC](https://boards.straightdope.com/t/kolbe-v-hogan-fourth-circuit-says-strict-scrutiny-applies-to-second-amendment-infringing-laws/745291/79 "2016-02-08T22:56:19Z")
> [@YogSothoth](#): > > Really, guns, nothing else in this vast economy, cannot be regulated? Religion can’t be regulated. Speech can’t be regulated. The Press can’t be regulated. (except such minor things as were accepted in Heller, like Cannons being the equiv of "FIRE! in a crowded theater, etc) ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [February 8, 2016, 10:58pm UTC](https://boards.straightdope.com/t/kolbe-v-hogan-fourth-circuit-says-strict-scrutiny-applies-to-second-amendment-infringing-laws/745291/80 "2016-02-08T22:58:36Z")
> [@Bone](#): > > I think that’s appropriate as long as the appellate court acts within the confines SCOTUS laid out. You’ll forgive me if I don’t give a great deal of credence to your argument when you only accept that the two scenarios that get your preferred result are “within the confines SCOTUS laid out.” [Previous page](https://boards.straightdope.com/t/kolbe-v-hogan-fourth-circuit-says-strict-scrutiny-applies-to-second-amendment-infringing-laws/745291.md?page=3) [Next page](https://boards.straightdope.com/t/kolbe-v-hogan-fourth-circuit-says-strict-scrutiny-applies-to-second-amendment-infringing-laws/745291.md?page=5)