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

Great Debates
41

No problem.

I think the distinction that Bricker drew is reasonable. Enumerated rights have the potential to deserve higher levels of scrutiny. I would be in favor of having sexual orientation as a suspect class, personally.

I also think this is a weakness of the “common use” test, but that’s where we’re at and it’s not likely to change. In that vein, it’s incumbent on those who desire to increase gun rights to purchase a wide variety of firearms, and often :slight_smile: This argument doesn’t work with my spouse.

I don’t think this example is really on point. Possession of magazines and their availability in general is a right that is coextensive with gun ownership. The 4th circuit directly addressed this, noting that if it were permissible to ban certain parts, like firing pins, then the amendment itself could be rendered null simply by banning all the requisite parts. The 2nd recognizes the right to self defense. I would venture to say effective self defense. Firearms, and handguns specifically, are only one avenue towards that end. But anything that advances the cause of self defense would be implicated by the 2nd. The recent striking down of switch blade bans, and the NY nunchukus case that is still proceeding are based on this idea. It could and should be applied to stun gun bans, and all other personal weaponry less lethal than a firearm.

Likewise, the ability to practice and train are also coextensive rights of the 2nd. This was addressed in the 7th circuit in Ezell. There the court ruled it was impermissible to prohibit the ability to practice outright by outlawing firing ranges.

These are each related to the core right. Where the 14th lays out specific criteria that are excepted, the basis of sex is not. It should be, IMO, but it’s not.

In general, restrictions on political speech that are content neutral would be subject to intermediate scrutiny review.

Being content neutral wouldn’t be the only hurdle that would need to be overcome for speech restrictions. There is still the 4 (5) prong test:

The “narrowly tailored” prong is the more difficult hurdle IMO. But in any case, political speech can be limited if it is content neutral and satisfies the 5 prongs above.

There are more examples at the link that talk about cases of speech restriction that both passed and failed intermediate scrutiny.

I’m not sure what Bricker intended as the subject for debate, but I think this touches on it. I interpret the question as: What level of scrutiny is appropriate, and did the 4th circuit get it right mandating strict scrutiny? Also, did the 4th circuit correctly decide the threshold items for magazines, and retired law enforcement (equal protection claim).

It’s important to remember that 2nd amendment jurisprudence is not well fleshed out at this point in time. I am a gun rights advocate and I welcome strict scrutiny for anything related to firearms, but I know that’s not realistic nor consistent with how things have operated up to this point. So much of what I think is just that, my personal opinion mixed in with conjecture. There are a few things that we do know from the paucity of cases that have been decided thus far. In broad strokes, those things are:
**
2nd amendment cases should be analyzed using a 2 prong test.**
This was laid out in Heller, and has been adopted in every district that has heard 2nd amendment cases. The two prong test is 1.) whether the 2nd amendment is implicated, and, if it is implicated, 2.) what is the magnitude of the implication. The magnitude controls the level of scrutiny. Rational basis is not a permissible level of scrutiny.

There are certain things that are coextensive rights. The right to practice, the right to acquire ammunition

I think that’s about all that is relatively uncontroversial. There’s quite a bit more that are less accepted and are still being litigated. I would be naive if I thought these would all go in one direction, but I am holding out hope. The largest is what “bear” means. I think that will probably get intermediate scrutiny, and all states will have to have some form of bear that is available to all persons. “bear” must mean something.

The analysis in the 4th circuit talked in detail about the first prong of the test - whether the 2nd was implicated. The district court concluded in the case of magazines with a capacity greater than 10 rounds that because these were not specifically firearms, they were not covered by the 2nd amendment. The district in this matter did not go past the first prong. At the appellate level, they correctly recognized this was nonsense.

The district court also concluded that the assault weapon ban implicated the 2nd, but it was a minor implication because other arms were available. It uses intermediate scrutiny because in Heller rational basis was specifically ruled out. And here is where I think the district court got it very very wrong. Under intermediate scrutiny, the AWB should have fallen. Banning the most popular rifles in the country is not narrowly tailored. There must also be a reasonable fit between the government’s restriction and their intended purpose. That should have doomed the AWB as well. But it didn’t. I actually think if the district overturned the bans and ruled the opposite way with intermediate scrutiny, the case would have died there. But because the appellate court did not have faith the district would treat the level of scrutiny in good faith and came to the incorrect conclusions, they elevated the level of scrutiny to force their hand. That last part is just conjecture on my part.

The appellate court concluded that the burden to the right recognized in the 2nd was substantial. The magnitude of the implication controls scrutiny, and since it was substantial, rather than incidental, strict scrutiny was called for. The ban was an entire class of firearms, that happens to contain the most popular firearms of that class in the nation. That’s implicates the core of the right, and lends further support to the substantial burden, rather than incidental.

I am very glad to see this court take on the ideas of “dangerous and unusual”, “in common use”, and the idea that bans are okay because some other firearms are available:

There was also the equal protection claim which I think was wrongly decided. Retired police should not enjoy rights greater than regular citizens. This has doomed laws in CA, and I’m surprised this held up in the 4th circuit. Hopefully that idea can eventually be litigated and be obliterated.

42

Arcane or not, it’s still not so common that you can expect everyone to know what it means. And unlike initialisms, it’s not easily Google-able. I think it’s a great example where conciseness is being used at expense of clarity.

To that end, I will let you know that you can just type ≠ to get ≠

43

Now, let’s criticize the dissent.

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.

“Let’s be real” indeed. The caliber of writing is embarrassing. This section alone reveals fundamental ignorance as to the items in question. AR-15 platform rifles are not “exceptionally lethal”. Nor do they function almost identically to a fully automatic M-16. It just proves judges are not required to have an understanding of the things they are ruling on.

This is simply false. Handguns are involved in fatalities and injuries in an overwhelming ratio. They are caused by people.

Separately, the AR-15 platform rifle is the most popular semi-auto rifle in the country.

44

If that’s true, how odd that Section 2 said:

Section 1 giveth and Section 2 taketh away?

And if your theory is correct, the time and effort wasted on the passage of a Nineteenth Amendment that is pure surplusage is truly unparalleled.

But your theory is not correct. “The equal protection of the laws,” is considerably more vague as applied to the question of discrimination based on sex.

45

I don’t actually think it is a defensible position because it’s purely instrumental rather than interpretive, and our constitutional jurisprudence should be an attempt to interpret and not just do what works best. An enumerated rights theory is basically saying that judicial humility should trump all other theories that try to get at what the framers were trying to accomplish out of fear that we might be getting it wrong on things like abortion rights. It privileges freedom from excessive fines over freedom of speech, which seems unlikely to have been the framer’s hierarchy. Even if that were theoretically sound, the bigger problem is that conservatives have the tendency to believe the rights they like are textual and the rights they don’t like are not–regardless of how connected to the text the respective rights are.

This is a good example of what I’m talking about above. Individual “assault weapon” ownership is right there in the text, says Bricker, but “equal” doesn’t mean equal when it comes to women fighting discrimination.

The belief that Section 2 contradicts Section 1’s application to sex isn’t textual. It is based on the non-textual assumption that readers of Section 1 might think it is talking about political rights in addition to civil rights. But the undisputed history of the Fourteenth Amendment is that opponents were concerned that it would be seen to grant suffrage to women and others. Proponents repeatedly stressed that they were envisioning equality of civil rights, not political rights, and so framed the wording of the amendment to make that clear. If you don’t read Section 1 as applying to political rights (as no one did, which the example of black enfranchisement would make crystal clear since Section 2 doesn’t mention race), then there’s no reason to read Section 2 as commentary upon Section 1. If anything, the distinction between male and non-males in Section 2 suggests that the absence of such a distinction in Section 1 means it does apply to sex.

The point is that almost no actual holding of a case is right there in the text of the Constitution. There’s always inference and interpretation to be done starting from the text. Yes, some holdings are closer or further from the text, but it’s a matter of degree and not kind. And that degree is not objectively measureable. In fact, I think it’s even more subjective than other modes of jurisprudence since there isn’t really any way argue about it. How many steps from the text is protection of assault rifles compared to, say, protection for pornography?

46

Can you clarify the ‘instrumental rather than interpretive’ part? I’m not sure I understand the distinction you are drawing.

[quote]
This is a good example of what I’m talking about above. Individual “assault weapon” ownership is right there in the text, says Bricker, but “equal” doesn’t mean equal when it comes to women fighting discrimination.

…

I agree there is inference and interpretation, but I’m not clear on how that supports your point. It seems your main point of contention is that Assault Weapons in question (semi auto AR-15 platform rifles) do not obviously fall under the category of Arms that are described in the 2nd, and to construe these as Arms, it requires a level of interpretation as great as that for protections of pornography, or abortion, which have lower standards of scrutiny. Is that a fair summation? I’m sure I got some nuance wrong. I’m not as familiar with non-firearm jurisprudence so if there are parts I’m missing then please let me know.

I’ll proceed for now assuming this is close to your position. This is essentially the two prong test for 2nd amendment analysis. I think it’s clear that these weapons are implicated, and that these types of rifles are a class of weapons that would be useful both for home defense, and for militia purposes. There isn’t meaningful distinction between handguns and these types of rifles for the purposes of constitutional analysis. That being the case, the right being implicated is substantial, and strict scrutiny would be appropriate. What I find curious is that even if intermediate scrutiny were used, the ban should have fallen. It is not narrowly tailored to achieve any purpose.

There are areas that I think intermediate scrutiny are appropriate. Firing range locations, various zoning laws, and probably manner of carry. If a municipality or state were to ban carry altogether, I think that fails under any level of scrutiny. If carry is generally allowed, but the method is prescribed, that is probably intermediate scrutiny. That’s all my conjecture.

47

And why was the 19th Amendment necessary?

48

Just to clarify, since I was the one who brought this up… Many of those items are not explicitly listed as rights in the constitution, so I’m fine with the justices determine what level of scrutiny they should get when the courts determine that such rights exist. The courts giveth and the courts may taketh away.

And although some of the rights explicitly listed are not given strict scrutiny, I would like to see that they were. We, as citizens, secured these rights to ourselves and if the government wants to limit them in some way, there should be a compelling government interest for doing so. That the laws should be narrowly tailored, and be the least restrictive means of achieving the interest.

49

An interpretive method is one that seeks to understand the meaning of a constitutional provision in deciding how to apply it to a given case. An instrumental method applies a provision in a way that suits some current interest apart from faithful application of the meaning of the provision. Applying explicit provisions more strictly than implicit ones is not an interpretive method–it does not seek to understand, for example, how important the provision was to the framers or the scope the framers intended to apply or what principle the framers intended to embed, etc. Instead, such a jurisprudence is justified by instrumental arguments about judicial humility. That’s an instrumental argument rather than an interpretive one.

Two nuances lost. First, I think abortion is clearly further from the text than “assault weapons”–which I put in quotes because I think it’s a nonsense category that would fail intermediate scrutiny. But many other constitutional rights fall into a vast gray area in which no one can really say which is further from or closer to the text. Second, the issue is not just whether “arms” includes an AR-15, but also whether the Second Amendment guarantees an individual right to bear arms. I agree that it probably does. I just think it is fantasy to believe that it is spelled out in the text.

I don’t necessarily disagree with the further argument you offer. I just don’t think it is distinguishable from how we treat many other areas of constitutional rights. We should either treat them all with strict scrutiny or have a defensible reason for not doing so. I don’t think the right of an individual to bear AR-15s with large magazines is any more clearly spelled out than the right to own a May 1965 Playboy.

Because the Fourteenth Amendment applied to civil and not political rights. In your conception, why was the Fifteenth Amendment necessary? Surely you think Section 1 applies to racial discrimination, don’t you?

As I explain above, I don’t think the explicit/implicit line is as bright as many people seem to believe, nor is it necessarily a defensible line for higher scrutiny. But your position is at least internally consistent, which is more than can be said for people who think the Second Amendment ought to enjoy greater protection than some of the other “explicit” rights.

50

But I think we can list some as “clearly explicit” some as “clearly not explicit” and some as “arguably one or the other”. So it’s really only the 3rd category that we need to,well, argue over.

51

I’d be surprised if we agreed on what goes into that third category.

**Bricker **seems to think that the right to own an AR-15 is clearly explicit, while the right not to be discriminated against on the basis of sex is not just clearly not explicit but in fact non-existent. Do you agree?

52

A Federal dissent actually used the phrase “let’s be real” ? Ewww. Was the basis for the Majority “S’all good, man” ?

53

NB the concession applied only to “!=”.

I am enjoying your other comments, but don’t understand why you can’t spare a paragraph or two for “dangerous and unusual” (entire hectare not necessary). I guess I’ll just have to look at that Heller thingy some more. The phrase is so absurd I would like to know what clown from On High is responsible.

54

What inquiry do you have? The origin of the phrase is from Heller, though it appeared previously in other contexts.

Is there more to your question beyond the origin? ThE phrase is related to the first prong of the two prong test and what is implicated by the 2nd. If you flesh out your question more then I and perhaps others would be glad to respond.

I just caught the hectares thing. I blame Autocorrect.

55

Yes. But Sec 2 suggests that the penalty for failing to abide by Sec 1 is merely the loss of proportional representation. The Fifteenth Amendment unambiguously granted the vote, rather than carrot-and-sticked the issue as the Fourteenth did.

56

Not quite. I think the right to own an AR-15 is grounded in a right that is clearly explicit. It is not bedrock, but rests upon the bedrock.

The right to abort during the first trimester, in contrast, rests on the right to privacy, which rests in turn on other rights deduced from the Fourth, Fifth, and Fourteenth Amendments, which are of course themselves bedrock.

Piling inference upon inference is the distinction here.

57

So, in your view, Section 1 guaranteed the right to vote to former slaves, but had no enforcement mechanism except that found in Section 2? Does that mean you believe that Section 1 cannot be enforced on its own terms by the courts?

As I already acknowledged above, abortion is an easy target, and not actually the right I referred to in the post to which you responded. Yes, abortion is further from the text than AR-15s. Sex discrimination isn’t. Nor is, say, commercial speech.

58

No, but Sec 2 vitiates the broad guarantees that “Equal Protection” might otherwise convey.

Fair enough.

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.

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.

59

Here I think we venture into territory that describes how we wish things to be. Why can we not construe an interpretive method that interprets enumerated rights differently than non-enumerated rights? 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? Heller did note that the mere fact that the right was enumerated takes various restriction options off the table.

Okay, I agree with this. But the district court in the 4th circuit upheld the AWB under immediate scrutiny. I think that was a mistake. Since you think that should fail under intermediate scrutiny, I am assuming you think they erred as well.

But here it seems you are re-arguing Heller. Heller has already determined the individual vs. collective right. And even still - all nine justices adopted the individual right interpretation, though the dissent believed that to be an individual right only in connection with militia service. I don’t think it’s appropriate for lower courts to re-argue Heller and the individual right to bear arms argument is decided. It may not be explicitly spelled out in the text, but I think it’s the most reasonable interpretation of “the right of the people”. The issue before the 4th circuit was whether “arms” includes an AR-15 platform semi auto rifle. The district court did not think it did, and the appellate court overruled them, correctly IMO. Do you think the rifles in question are not arms for the purposes of 2nd amendment analysis?

I actually think the 1st amendment jurisprudence can inform 2nd amendment analysis. That being said, depending on the magnitude of the right that is implicated, the level of scrutiny may differ. Are you saying you don’t agree with the tiered approach to 1st amendment restrictions? When it comes to the 2nd amendment - I think it’s appropriate that anything that touches on the core of the right, effective self defense IMO, should be evaluated under strict scrutiny. Intermediate for anything else. I don’t think that is unworkably inconsistent and there are good defensible reasons for having a tiered approach. However, I would not oppose strict scrutiny for all enumerated rights regardless of the magnitude of implication. But since each of those areas would have to be litigated individually sans some act of Congress or additional amendment, it’s likely there would be a piecemeal approach for the foreseeable future.

60

The point is that it is clear from the text of the 14th amendment that it did not confer voting rights to blacks, women, or anyone at all. It implicitly allows women to be disenfranchised, and allows blacks to be disenfranchised subject to the reduction of representation in the states that do so.

IMHO, this is the huge flaw in modern 14th amendment jurisprudence. We have vague phrases like “equal protection of the laws” and try to determine what they mean. 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?

Let’s try an analogy, and tell me if it is apt:

Sec 1. No state may deny marriage equality to all of its citizens.

Sec 2. If a state denies a marriage license to any non-related male and female couple over the age of 21 years, it shall lose 10% of its allocated federal highway funds.

I think it is clear from the amendment that a state may outlaw: 1) incestuous marriage, 2) polygamous marriage, 3) same sex marriage, and 4) marriage between those under age 21. It may outlaw a male-female marriage outside of those categories so long as it forfeits 10% of its highway funds.

Your argument seems to suggest that a person could go to court, look at only section 1, and say that states must allow same sex marriage or incestuous marriage.

Respectfully, that is a hackneyed way of reading legislative enactments that is not done anywhere else. It is simply results oriented.