# Kolbe v. Hogan: Fourth Circuit Says Strict Scrutiny Applies to Second Amendment Infringing Laws

**URL:** <https://boards.straightdope.com/t/kolbe-v-hogan-fourth-circuit-says-strict-scrutiny-applies-to-second-amendment-infringing-laws/745291>\
**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:** 1\
**Showing post:** 5

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**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")

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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?

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