Kolbe v. Hogan: 4th Circuit Proscribes Strict Scrutiny for State Ban on Assault Rifles

July 21st, 2016

by Christie Chung, CHHS Research Assistant

             For nearly the price of a paintball gun, you could buy an AR-15. Though most generally go for around $1,000 to $2,000, the most popular rifle in the U.S. retails for as low as $215.19 online.  Nicknamed “America’s Rifle” by the NRA, the AR-15 is a civilian variant of the M-16 rifle used by the U.S. Military. Since Colt began marketing the rifle in 1960, the weapon has been widely adapted and made available through a number of other manufacturers. Lightweight and highly customizable, the AR-15’s shooting capacity is limited only by the speed at which its trigger can be pulled.  Unsurprisingly, the rifle seems to be the weapon of choice for many perpetrators of mass shootings.

Gunmen at San Bernardino, Aurora, and Sandy Hook all used the weapon to carry out unthinkable acts of violence that have rippled across the national consciousness. Most recently, Omar Mateen used a Sig Sauer MCX rifle to perpetrate the deadliest mass shooting in modern U.S history. “Built from the ground up to be silenced, light and short,” the MCX is not an AR-15, but they share largely the same functions in terms of portability, ease of use, and capacity for rapid fire. Banned from 1994 until 2004, AR-15s and the like are once again at the forefront of the U.S’ gun control debate.

In the wake of Sandy Hook, three states—Connecticut, New York, and Maryland—passed acts barring the possession, use, purchase, or otherwise transfer of assault weapons. In October 2015, the United States Court of Appeals for the 2nd Circuit upheld the New York and Connecticut bans. In February 2016, the United States Court of Appeals for the 4th Circuit ruled on the constitutionality of Maryland’s Firearm and Safety Act (FSA).[1] With the exception of current and retired police officers, the FSA prohibited residents of Maryland from owning “assault pistols,” “assault long guns,” and “copycat weapons” (referred to, collectively, as “assault weapons”).[2] Upon conviction for violation of the FSA, a person faced up to 3 years of imprisonment, a fine not exceeding $5,000, or both.[3]

In Kolbe v. Hogan, Stephen Kolbe—joined by various associations of gun advocates and dealers—challenged the FSA as an infringement on his Second Amendment right. In coming to a decision, the Court made two principle holdings that will have a far-reaching impact on the future of gun control in 4th Circuit states.

The three-judge majority panel first held that assault weapons were “weapons typically possessed by law-abiding citizens for lawful purposes.”[4] The classification of semiautomatic rifles as “typically possessed” for “lawful purposes” is significant because of Supreme Court limitations placed on the Second Amendment. In a seminal 2008 decision, the Supreme Court carved out an exception to the Second Amendment for “dangerous and unusual weapons.” Examples of weapons not afforded Second Amendment protection include sawed-off shotguns, hand grenades, and interestingly enough, “M-16 rifles and the like.”[5]  By finding that semiautomatic assault weapons did not meet the criteria for “dangerous and unusual,” the 4th Circuit effectively brought assault weapons within the purview of the Second Amendment. Moving forward, this would mean that the Second Amendment would be automatically implicated should another 4th Circuit state seek to implement a ban on assault weapons.

Having determined that the FSA posed a burden on the Second Amendment, the Court next made the principle determination that the burden was a substantial one. Judge Traxler, writing for the majority, construed Maryland’s ban to prohibit “an entire class of weapons.”[6] Consequently, the Court prescribed strict scrutiny as the appropriate standard of judicial review.

The Court’s decision to subject the FSA to strict scrutiny is unprecedented.  As Judge King notes in his dissent, “not a single court of appeals has ever—until now—deemed strict scrutiny to be applicable to a firearms regulation along the lines of the FSA.”[7] Strict scrutiny is the most stringent form of review used in a court of law. It requires the government to show that a law serves a compelling State interest in the “least restrictive” way possible.[8] Assault weapons are not currently prohibited in any other state in the 4th Circuit. Should Virginia, West Virginia, North Carolina, or South Carolina move to institute a ban, they will carry the heavy burden of showing that there are no available alternative means to maintaining public safety.

Following the Court’s holding, Maryland Attorney General, Brian Frosh, announced the State’s decision to pursue either an en banc rehearing of the case or a Supreme Court reversal of the decision. On March 4th, 2016, the 4th Circuit followed up by announcing its agreement to hold a rare en banc rehearing before a full panel of the Court’s judges.  Oral arguments were heard on June 11th, 2016. A final decision on the FSA’s constitutionality is expected later this summer. Should the Court uphold its earlier decision, strict scrutiny will not only become mandatory authority for 4th Circuit states—it will also become available as persuasive authority for other circuits that have yet to rule on the issue.





[1] Kolbe v. Hogan, 813 F.3d 160, 184 (4th Cir. 2016).

[2] Md. Code Ann., Crim. Law §§4-301(d), 4-303(a)(2).

[3] Id. § 4-306.

[4] Kolbe, 813 F.3d at 176.

[5] District of Columbia v. Heller, 554 U.S. 570, 628 (2008).

[6] Kolbe, 813 F.3d at 180.

[7] Id. at 197.

[8] Id. at 179 (citing United States v. Playboy Entm’t Group, 529 U.S. 803, 813 (2000)).

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