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

Great Debates
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En Banc oral arguments were held yesterday. Audio can be heard here (case # 14-1945).

I found the lawyer for the plaintiffs (arguing against the ban) to be not as good as I would have liked. It seemed the judges asking him questions were more aggressive than the ones questioning the defendants. A couple things I noted upon first listen:

At around 26:00, in the context of talking about if a modification of firearm turns it into a banned firearm then the accessory used to modify may be banned, one of the justices asserts that silencers are banned and doesn’t change the functionality of the firearm. Of course, silencers are not in fact banned.

At around 28:45, in the context of comparing relative danger for various weapon platforms, the plaintiff’s lawyer describes how handguns are used in vastly disproportionate amounts for various types of crime, but one of the judges interrupts and says that that doesn’t count, what counts is what’s used in mass shootings. This seems wrong headed to craft policy around infrequent events. It also seems wrong factually.

At around 58:00, the defense lawyer for the State talks about the two prong analysis for 2nd amendment jurisprudence and compares to similar tests for the 1st amendment. This supports the idea that there are 1st amendment analogues when conducting 2nd amendment analysis.

At around 59:00, the defense lawyer for the State mentions that if a government were to ban a large subset of handguns, then that would likely be subject to strict scrutiny. This was contrasting banning all handguns which fails under any scrutiny. This made me thnk of the large subset of handguns that are banned in CA as a result of the roster and microstamping requirement that is currently impossible to meet.

If I had to predict, I’d say that the en banc court upholds the ban. I suspect they find similar to the Woolard court that the 2nd amendment is implicated, though not severely. As a result, intermediate scrutiny applies and the ban stands under intermediate scrutiny. I think that would be completely wrong at every level of the 2nd prong of the analysis, but that would be my expectation.

Under intermediate scrutiny, the AWB should fall. 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 its intended purpose. Since these weapons are rarely used in crime or for unlawful purposes, the ban is not a reasonable fit.

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Thanks Bone, you’re awesome. You are also an incurable pessimist but even I thought the court seemed pretty hostile to the plaintiff.

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Unfortunately my prediction was correct. The 4th circuit issued its en banc decision yesterday upholding the ban:

I find the analysis pretty poor, but I have to read it through again to digest.

Previously I was unsure what would happen when the en banc court would uphold the ban. I now predict the plaintiffs will seek cert.

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Maybe I’m crazy but it seems like I’m constantly hearing that the second amendment only applies to militia members, and miller even allowed a ban on sawed off shotguns because they weren’t a military weapon and therefore not a militia weapon. Now we’re told that military weapons aren’t protected? Which is it?

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You’re not crazy. The anti-gun crowd has flipped their position 180 degrees from what it was.

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Some of the blame belongs to Scalia. Although I agreed with his Heller opinion, his dicta regarding commonly owned weapons vs. military weapons was absurd for the reasons you mentioned.

If the reasoning behind the 2nd amendment is so individuals can gather in short order to perform militia functions, aren’t those also military functions requiring military weapons? His “M-16s and the like” throwaway line had very little analysis and was unexpected coming from such a legal giant.

Notwithstanding that dicta, this opinion is an absolute travesty. These are not military weapons. They look like military weapons. If we get Gorsuch, maybe this is a good time for cert.

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Well, it is a little crazy. Sawed off shotguns arent protected, as they are not suitable for militia use. Ok. I can kinda buy that.

Scary semi-autos also arent protected as they ARE suitable for militia use.:dubious:

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The distinction has never been about “military” weapons. Ultra Vires should know better, by the way. The distinction was about weapons that would be used by a “militia” that was “well-regulated.” For Scalia, that means weapons that are substantially similar to the weapons that the militias of the Revolution used, since the 2nd Amendment was written with them in mind. Neither the sawed-off shotgun, nor the M-16 would be the sort of weapon the militia would bring to their assembly.

Not saying I agree with Justice Scalia’s dicta (I hate dicta because it’s almost always a cause of trouble down the road :mad:). But the “military” distinction has nothing to do with it.

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If anything, military- and military-style weapons should be fine. Most murders involving firearms are committed with handguns. I suppose one could make an exception for handguns used by the military, like the M1911…

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The opinion went to more than a little effort to describe the Newtown shooting. They never went into whether or not the rule makes any sense, just that AR-15 is pretty much just like an M-16.

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I wish we could convince the ATF that owning an M-16 is pretty much just like owning an AR-15.

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A militia member of 1776 would not be expected to bring a revolver or semi-automatic pistol to their assembly either, but those were (some of) the weapons at issue in Heller.

[QUOTE=Heller v. D.C.]
We may as well consider at this point (for we will have to consider eventually) what types of weapons Miller permits. Read in isolation, Miller’s phrase “part of ordinary military equipment” could mean that only those weapons useful in warfare are protected. That would be a startling reading of the opinion, since it would mean that the National Firearms Act’s restrictions on machineguns (not challenged in Miller) might be unconstitutional, machineguns being useful in warfare in 1939. We think that Miller’s “ordinary military equipment” language must be read in tandem with what comes after: “[O]rdinarily when called for [militia] service [able-bodied] men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time.” 307 U. S., at 179. The traditional militia was formed from a pool of men bringing arms “in common use at the time” for lawful purposes like self-defense. “In the colonial and revolutionary war era, [small-arms] weapons used by militiamen and weapons used in defense of person and home were one and the same.” State v. Kessler, 289 Ore. 359, 368, 614 P. 2d 94, 98 (1980) (citing G. Neumann, Swords and Blades of the American Revolution 6–15, 252–254 (1973)). Indeed, that is precisely the way in which the Second Amendment ’s operative clause furthers the purpose announced in its preface. We therefore read Miller to say only that the Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes, such as short-barreled shotguns. That accords with the historical understanding of the scope of the right, see Part III, infra.25
[/QUOTE]

So, says Scalia, it was meant for military purposes, but it cannot really mean that, it only means weapons in common use, but ultimately for a military purpose (militia use). It has no real principled meaning and not something expected from Scalia.

Why, for example, would it be “startling” to say people should be able to own M-16s?

The Fourth Circuit confounds this language by saying that since so few people own guns which meet the exact specifications of those named in the assault weapons ban, they are not in common use. Such a narrow reading would eviscerate the Second Amendment.

For example, I’m sure that only a fraction of one percent of the public owns a Glock 19 2nd generation. Therefore a Glock 19 2nd generation is not in “common use” and is not covered by the Second Amendment. Rinse and repeat with every firearm. If these guns at issue were merely classified as “semi automatic firearms” then they are certainly in common use, and are protected.

But Scalia’s dicta blurred this issue.

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A “revolver” is simply a form of pistol. A pistol most certainly would be expected at the militia. We don’t create some more-specific name for an item of similar purpose, then exclude it from consideration on the basis that it has evolved in mechanics and been called something else.

You are, I believe, reading Justice Scalia’s language incorrectly. Justice Scalia is attempting to leave Miller as valid law, despite the holding in Heller. So he rejects the reading of the language of Miller (“ordinary military equipment”) as being based upon what “military equipment” means to us in 20th/21st Century America. Instead, he reads it to mean “ordinary military equipment” to mean “ordinary [militia] equipment”, which consisted of those weapons in “common use at the time for lawful purposes.” So, under this rubric, if it’s a weapon that is commonly used by citizens for lawful purposes, it’s covered by the Second Amendment. Sawed-off shotguns are not so covered, since they exist for the purpose of circumventing the law (Miller). Similarly, an “M-16” is not a type of weapon that is in “common use” by citizens for lawful purposes. Yes, there may be quite a few people who have them, or something similar, but compared to the vast majority of firearms owned, they represent such a small slice. And their use by many criminals and criminal organizations for the purpose of breaking the law probably, in Justice Scalia’s mind, puts them closer to the sawed-off shotgun, than to the common revolver.

Now, mind you, I’m not saying I buy that this is a valid line of reasoning. And my comment previously on the stupidity of dicta is pertinent. But let’s not mix up what he’s trying to say while trashing it. :wink:

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Unfortunately the Kolbe court created a new rubric and set aside the tests in Heller. Instead, it opts to apply the “weapons that are most useful in military service” test. Under this analysis, pretty much all weapons would fall outside the scope of the 2nd amendment. Oddly, the M1 Garand which is an actual weapon used in the military during armed combat would be allowed under the law that was contested, but the AR-15 platform rifle which has never been used during armed combat would not be allowed.

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An M-16 or an AR-15 is simply a form of rifle. A rifle most certainly be expected at the militia.

Further, I don’t have a cite, but would be surprised if any, let alone more than a few, militia members in 1776 would bring a pistol.

A few problems with this. Fully automatic weapons are not “in common use” precisely because of the National Firearms Act. If not for the national prohibition, they would be immensely more popular. It seems as if the NFA and the 1986 prohibition on registering new machine guns have acted as their own constitutional justification by limiting the number of those types of weapons and made them not “in common use.” That analysis simply cannot be correct.

Further, militia purposes are the same as military purposes. If there is a reason for members of the community to gather as a military, then they need arms suited for military purposes and thereby need to be allowed to possess those types of arms. The quoted paragraph from Heller dodges that in a very poor way.

Finally, a sawed off shotgun is functionally indistinguishable from a long barrelled shotgun, except that a few inches have been removed from the barrel. It is, again, not in common use because of the NFA prohibition. Miller held it not to be protected because the Court had nothing on a scant record to show that it served a militia purpose.

If a person wanted to challenge the sawed off shotgun ban, would it be sufficient to demonstrate a suitable militia purpose? Miller would say yes, but Heller would say no. Under Heller, once a particular type of firearm was suppressed, even by illegal means, so long as it is currently not in common use, then it can be completely banned.

That one paragraph has caused the wild variances in Second Amendment jurisprudence ever since.