When the Supreme Court meets to discuss pending petitions for review, the justices’ conference calendar is going to include a pivotal Second Amendment case: Kolbe v. Hogan.
In the case, Kolbe v. Hogan, the complete Fourth Circuit Court of Appeals supported Maryland’s ban on semiautomatic rifles, as well as the detachable ammunition magazines who exceed 10 rounds. While acting so, the Fourth Circuit became the fourth federal appellate court to support the constitutionality of a prohibition on large-capacity magazines and “assault” weapons. The Second, Seventh, and the District of Columbia circuits previously have supported similar bans. To date, the Supreme Court has been always refusing to enter the fray.
However, Kolbe v. Hogan is about to force the justices’ hand. And here’s why.
There are Three Different Standards for Constitutionality
While all the four circuit courts who considered the constitutionality of bans on large-capacity magazines and “assault” weapons upheld the gun-control legislation, they all have adopted three various standards for judging the constitutionality of the laws supporting the Second Amendment, as well as the Supreme Court’s Heller decision.
D.C. Circuit, as well as the Second Circuit, both, concluded Second Amendment protections extend to large-capacity magazines and semiautomatic rifles. But, since banning these weapons and ammunition “doesn’t seriously impact anyone’s ability to defend himself in their homes,” the appellate courts held the appropriate inquiry for them to examine do the government established a solid relationship between the important state interest and the prohibition.
In the law, the “substantial relationship” with “an important state interest” standard is called “intermediate scrutiny.” The Second Circuit, along with the D.C. Circuit, both decided that the laws at issue served intermediate scrutiny and thus supported the bans.
Conversely, the Seventh Circuit in Friedman v. City of Highland Park created a different test, arguments that, “instead of trying to decide what ‘level’ of scrutiny applies, and how it works,” it is more suitable “to ask whether a regulation bans weapons that were common at the time of ratification or those that have some reasonable relationship to the preservation or efficiency of a well-regulated militia, and whether law-abiding citizens retain adequate means of self-defense.” If applying this standard, in a split 2-1 decision, the Seventh Circuit automatically supported the Highland Park ban on semiautomatic weapons.
Is Semiautomatics Bannable, As Fully Automatics?
Preferably than following the lead of its sister circuits, the en banc court in Kolbe made a third path: The majority conclusion concluded: “that the banned assault weapons and large-capacity magazines are not constitutionally protected arms.”
The Fourth Circuit reached this conclusion by noting that the Heller Supreme Court realized that the Second Amendment guarantee “extends only to certain types of weapons” as well as the “weapons that are most useful in military service – M-16 rifles and the like – may be banned” without violating Second Amendment rights. The majority then decided that semiautomatic AK47 and the AR-15, as well as some other banned “assault” weapons and large-capacity magazines, such as, for example, as the M-16 rifles, and hence “they are among those arms that the Second Amendment doesn’t shield.”
There’s no need to be well-versed in the complexities of firearms to gasp at the Fourth Circuit’s comparing of semi-automatic rifles with some fully-automatics like the M-16. This bizarre logic alone would justify the Supreme Court summarily leaving the Kolbe decision. Additionally, as the cruel four-judge disagreement with Kolbe made clear, the Fourth Circuit’s majority conclusion is strikingly at likelihoods with the Supreme Court’s judgment in Heller.
Heller set as the dispositive question “whether the law bans types of firearms commonly used for a lawful purpose.” With AR-15 and AK-47-styled rifles considering approximately 20% of gun sales in the States, those “assault” firearms definitely temper as “commonly used” within the meaning of Heller.
Anyway, as noted above, the Supreme Court has been refusing to clarify whether semiautomatic weapon and large-capacity ammunition bans withstand the scrutiny of Heller. The court’s hands-off approach earned justices the wrath of Justice Thomas, with whom Justice Scalia joined, in an opinion dissenting from the Supreme Court’s refusal to hear an appeal of the Friedman case out of the Seventh Circuit.
The Court’s refusal to review a decision that flouts two of the Second Amendment precedents attains in marked contrast to the Court’s willingness to speedily reverse courts that neglect our other constitutional decisions. There’s no basis for a different result when our Second Amendment precedents are at stake.
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This Kolbe’s decision provides Justice Thomas extra vehicle in which to push the Supreme Court to review lower courts’ confusion of the Second Amendment. Yet if the other justices prefer to avoid the issue, the Fourth Circuit has made a hands-off approach kinda impossible: The Supreme Court will need to allow the petition for review in order to resolve the division in the circuits concerning the relevant standard and also, to clarify the governing law.
However, gun-rights activists need to temper any premature celebration. It is expected huge public pressure for upholding the “assault” weapon and high-capacity magazine bans, and just as the Justice Thomas accentuated: “If a broad ban on firearms can be upheld based on conjecture that the public might feel safer, then the Second Amendment guarantees nothing.”