The Lawletter Vol 42 No 3
Largely in response to mass shootings in places such as Newtown, Connecticut, Aurora, Colorado, Fort Hood, Texas, and Virginia Tech, in 2013, the General Assembly of Maryland enacted the Firearm Safety Act ("FSA"), which bans military-style rifles and shotguns (referred to as "assault weapons") and detachable large-capacity magazines. Affirming in relevant part a decision by the United States District Court for the District of Maryland, Kolbe v. O'Malley, 42 F. Supp. 3d 768 (D. Md. 2014), the Fourth Circuit Court of Appeals has upheld the FSA against a constitutional challenge based on the Second Amendment right to bear arms. Kolbe v. Hogan, 849 F.3d 114, 2017 WL 679687 (4th Cir. Feb. 21, 2017).
The appellate court concluded that the assault weapons and large-capacity magazines that were banned by Maryland's FSA were not protected by the Second Amendment; they were most useful in military service, in that they were designed to kill or disable the enemy on a battlefield, and they had a capability for lethality far beyond that of other firearms. This "most useful in military service" concept describes a distinction drawn by the U.S. Supreme Court in District of Columbia v. Heller, 554 U.S. 570, 627 (2008) ("It may be objected that if weapons that are most useful in military service—M-16 rifles and the like—may be banned, then the Second Amendment right is completely detached from the prefatory clause [concerning militias]. But as we have said, the conception of the militia at the time of the Second Amendment's ratification was the body of all citizens capable of military service, who would bring the sorts of lawful weapons that they possessed at home to militia duty.").In Heller, the Court held that the Second Amendment conferred an individual right to keep and bear arms, and that statutes banning handgun possession in the home violated the Second Amendment.
Even if the banned weapons were constitutionally protected, the Fourth Circuit Court of Appeals held that intermediate scrutiny, rather than the more demanding strict scrutiny, applied to the Second Amendment challenge to Maryland's FSA. According to the court, the Act did not severely burden the core right of law-abiding, responsible citizens to use firearms for self-defense in the home. It banned only the military-style weapons and detachable magazines, which still left citizens free to protect themselves with a "plethora" of other firearms and ammunition, including handguns, nonautomatic and some semiautomatic long guns, and magazines holding fewer than 10 rounds. Kolbe, 2017 WL 679687, at *16. The handgun, of course, is "the quintessential self-defense weapon," as described in Heller, 554 U.S. at 629, while there was scant evidence in the record that the banned assault weapons and large-capacity magazines are possessed, or even suitable, for self-protection. The challenged prohibitions, reasoned the Fourth Circuit, simply do not effectively disarm individuals or substantially affect their ability to defend themselves. Kolbe, 2017 WL 679687, at *17.
Continuing with its intermediate scrutiny analysis, the court in Kolbe found that Maryland's FSA bans were reasonably adapted to the not merely substantial, but compelling, governmental interest in public safety, as required to survive intermediate scrutiny on a Second Amendment challenge. The Act advanced Maryland's goal of curtailing the availability of military-style weapons to criminals and lessening their use in mass shootings, other crimes, and firearm accidents. The military-style features of the banned items pose heightened risks to innocent civilians and law enforcement officers, in part because of their capability to penetrate building materials and soft body armor, characteristics that are shared with some weapons that were not banned. But, unlike other weapons, assault weapons and large-capacity magazines present special risks "because of an amalgam of other capabilities that allow a shooter to cause mass devastation in a very short amount of time." Id.
The court in Kolbe expressed its confidence that its decision was consistent with mandates from Heller, pointing to the Heller Court's statement that "weapons that are most useful in military service—M-16 rifles and the like—may be banned" without infringement upon the Second Amendment right. See Heller, 554 U.S. at 627. Pointing to language in Heller, the dissent argued that “if the firearm in question is commonly possessed for lawful purposes, it falls within the protection of the Second Amendment.” See Heller, 554 U.S. at 627. Referring to this as a popularity test, the majority in Kolbe responded to the dissenters, by stating:
At bottom, the dissent concludes that the so-called popularity of the banned assault weapons—which were owned by less than 1% of Americans as recently as 2013—inhibits any efforts by the other 99% to stop those weapons from being used again and again to perpetrate mass slaughters. We simply cannot agree.
Kolbe, 2017 WL 679687, at *19.
The Fourth Circuit in Kolbe cited four decisions from its sister circuits, decided after Heller, in which the courts similarly declined to enjoin or strike down bans on assault weapons or large-capacity magazines on Second Amendment grounds: Heller v. District of Columbia, 670 F.3d 1244 (D.C. Cir. 2011) ("Heller II"); Fyock v. City of Sunnyvale, 779 F.3d 991 (9th Cir. 2015); Friedman v. City of Highland Park, 784 F.3d 406 (7th Cir.), cert. denied, 136 S. Ct. 447 (2015); and N.Y. State Rifle & Pistol Ass'n v. Cuomo, 804 F.3d 242 (2d Cir. 2015), cert. denied sub nom. Shew v. Malloy, 136 S. Ct. 2486 (2016).