Court Right – for Now

Second Amendment Protects “Assault Weapons”
Fourth Circuit Court says “Strict Scrutiny” applies.

By Jeff Knox

(February 10, 2016) Earlier this month, the Federal Court of Appeals for the 4th Circuit handed a stunning, but well-deserved, rebuke to the gun control zealots leading the state of Maryland.  In a 2-1 decision, a 3-judge panel rejected the conclusion of the Maryland District Court that said Maryland’s bans on so-called “assault weapons” and “high-capacity” magazines are permissible under the Second Amendment.  The case, Kolbe v. Hogan, was remanded back to the District Court for reconsideration using “strict scrutiny” instead of the looser standard, “intermediate scrutiny” that the lower court used in its original determination.

 In a nutshell, the difference between “strict” and “intermediate” scrutiny is that under “intermediate scrutiny” the state must show that there is an important government interest and that the law in question is substantially related to serving that interest.  Under “strict scrutiny” the state must show a compelling interest and that the law is necessary to meeting that interest in the least invasive manner practicable.

In the Kolbe case, the state argued that their ban on “assault weapons” and “high-capacity” magazines serves the important interest of promoting public safety and reducing deaths and injuries.  The Circuit Court bought that argument even though the state provided no proof that the restrictions have any discernable impact on public safety or injuries.  Had they investigated this question, the court would have found that “assault weapons” and “high-capacity” magazines are rarely ever used in crime or involved in accidents, so banning them could not have any significant impact on public safety.  Instead, the lower court dove into the question of how often “assault weapons” and “high-capacity” magazines are used in home defense – placing the burden of proof on the plaintiff to demonstrate a need, rather than keeping the burden on the state to prove that it is addressing an important interest.  By remanding the case back to the lower court with the “strict scrutiny” mandate, the 4th Circuit is placing a higher burden of proof on the state – one which they could not possibly meet in a just system. 

The Maryland Attorney General, Brian Frosh, has pledged to appeal the ruling to an en banc hearing of the entire 4th Circuit, and, failing that, to the Supreme Court.  Frosh is a former state legislator and was a leading proponent of restrictive gun laws during his 27 years in the legislature.  A decade ago, I encouraged rights groups in Maryland to abandon most of their campaign activities in order to focus their efforts on defeating Frosh and derailing his political career.  That advice was not heeded, and Frosh continued to lead the anti-rights forces in the Maryland Capital until he was elected Attorney General in 2015.  He has pledged, and his record of anti-rights activism supports the promise, that he will take this fight to the Supreme Court if necessary, spending untold thousands of Maryland taxpayers’ dollars in his efforts.

As things stand, the decision from the 4th circuit puts that Circuit at odds with other Circuit courts that have allowed “intermediate scrutiny” decisions validating gun bans to stand.  That split in the Circuits, if it is not reversed in an en banc hearing, would put pressure on the Supreme Court to hear this, or a similar case, and finally provide better guidance to lower courts on Second Amendment issues.

Up until six years ago, it is unlikely that the 4th Circuit would agree on an en banc hearing for this case, and if they had, the result would have almost certainly been in support of the 3-judge panel’s majority.  At that time the 4th Circuit was considered one of the most conservative of the Federal Courts of Appeal.  But in the past six years, Barack Obama has appointed seven judges to the 15-judge court, six of whom are still active members of the court, with the other serving on senior status.  Those appointments have dramatically shifted the ideology of the court from “conservative” to “moderate” or “liberal.”  Therefor an en banc hearing in this case is a real possibility, and it’s anyone’s guess how that might turn out.

The same is true at the Supreme Court.  While the Court came down 5-4 in both the Heller and McDonald cases, they kept those rulings extremely narrow and provided significant wriggle room in the dicta accompanying the holdings.  It is widely suspected that Justice Kennedy, and possibly Chief Justice Roberts, would be unreliable in a broader Second Amendment case, and that is why neither side has been able to put together the four votes needed to grant a hearing to the Second Amendment challenges that have petitioned the Court in recent years.  With a split in the Circuits, the Court is under more pressure to hear one of these cases, but their conclusion might not be one rights supporters would be happy with.

This all points up the critical importance of electing a President that will appoint judges and justices who hold a deep respect for the Constitution and its limits on federal power.  The next President will have over a hundred judicial appointments to make, and will likely be called upon to fill at least one, if not three or more vacancies on the Supreme Court.  If that President is of a similar ideological persuasion to Barack Obama – or even a conciliatory Republican – the long term consequences to the Constitution and the republic could be catastrophic.


There are many challenges facing our nation, but few present a more compelling case for electing a staunch conservative than the issue of judicial appointments.