Mimesis Law
27 September 2020

Another Second Amendment Opinion: This One Matters

Feb. 12, 2016 (Mimesis Law) — The Second Amendment. The right to bear arms. It’s the constitutional amendment everybody loves to hate, or loves to love. There are strong feelings on both sides. It’s been a hot topic this week at Fault Lines. Ken Womble says it’s time to discuss repealing it. I say leave it alone. Scott Greenfield doesn’t like guns, but he likes the Constitution.

Opinions from three guys. While they make for interesting reading, there is another opinion you should know about. A different group of three guys had their own little Second Amendment debate. Not bloggers, though. These guys are judges on the United States Court of Appeals for the Fourth Circuit. The Fourth Circuit decided Kolbe v. Hogan last week. Next time you debate gun rights, if you want to actually understand what you are talking about, this is the opinion to read.

The opinion is 90 pages long. In this new Internet world, that’s about 89 pages longer than most people have the patience for. When you are trolling around on the Internet, commenting on articles written by people who know what they are talking about, a little knowledge won’t kill you. These debates don’t happen in a vacuum. There are real cases with real people that matter. So here is what you need to know about the Fourth Circuit’s newest gun control opinion.

First, let’s meet the Fourth Circuit. It’s a federal appellate court. Federal court is where the serious shit goes down. Shinier floors, more security, smarter judges. Federal court is for real cases and important issues. When you lose there, you go from the federal district court to one of the thirteen United States Courts of Appeal. The Fourth Circuit covers South Carolina up to Maryland. Next stop after the Fourth Circuit is the United States Supreme Court.

The Fourth Circuit is historically known for being a conservative court. Some claim it is becoming more liberal. Those people are crazy. Or don’t practice law. Or both. But they have definitely not gone to Richmond and caught an ass-whipping or they would know there is nothing liberal about the Fourth Circuit.

So what exactly was the Court deciding last week in Kolbe? The constitutionality of an “assault weapons” ban. The state of Maryland passed the Firearm Safety Act. The Maryland law banned “assault long guns,” “assault pistols,” and “copycat weapons.” It also banned detachable magazines that held more than ten rounds. The plaintiffs challenging the law were two individuals and two businesses.

One plaintiff, Kolbe, owns a small business in Baltimore County and wants a semi-automatic rifle for self-defense. Another plaintiff, Turner, is an injured Navy veteran who wants a detachable magazine for self-defense reasons. Two other plaintiffs are businesses that sell guns. Not fly-by-night shady corner gun shops. Wink’s Sporting Goods and Atlantic Guns are legitimate sporting goods stores in Maryland.

Why the lawsuit? Specifically, the plaintiffs object to the ban on “assault long guns” which are semiautomatic rifles and large capacity magazines. To be exact, the ban applies to AR-15s, AK-47s, and any gun that copies those styles of rifle, as well as the magazines that carry more than ten rounds.

The Fourth Circuit’s majority opinion, written by Chief Judge William Traxler and Judge Steven Agee, explains exactly how the Court goes about considering the attempted limitation of a constitutional right. Note that they don’t blabber about natural rights or quibble with the Constitution’s effect. They actually reason through the issue, which is not at all a bad way to reach an opinion.

The words of the Second Amendment are short:

A well-regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed.

Never have so many argued so much about so few words. But the Fourth Circuit keeps its focus, rather than going down the rabbit hole of social debate over mass shootings or gun battles with the police. The Court considers two questions:

[W]hether the challenged law imposes a burden on conduct falling within the scope of the Second Amendment’s guarantee…

[What is] an appropriate form of means-end scrutiny…

In other words, is the law an infringement on the Second Amendment and if so, how should the court consider it?

The Fourth Circuit starts its analysis by recognizing the Supreme Court’s holdings in Heller v. District of Columbia and McDonald v. City of Chicago:

As is now well understood, Heller affirmed that the Second Amendment protects a preexisting “individual right to possess and carry weapons in case of confrontation.”

“Deeply rooted in this Nation’s history and tradition”…this right is among the “fundamental rights necessary to our system of ordered liberty.”

While the right to bear arms historically includes self-defense and hunting, the real deal with the Second Amendment is self-defense. And the right is most powerfully connected to a person’s home, which is where one is most entitled to self-defense. The Fourth Circuit recognized this powerful right as the primary concern of the people’s right to bear arms:

The Supreme Court has already performed an historical analysis of our traditional understanding of a citizen’s right to keep a weapon at home for self-defense, concluding that “the right of law-abiding, responsible citizens to use arms in defense of hearth and home” lies at the core of the Second Amendment.

The Court found the two items at issue, semi-automatic rifles and large capacity magazines, are commonly possessed by law-abiding citizens for lawful purposes. In short, a bunch of people have semi-automatic rifles, and a bunch of people have magazines that hold more than ten rounds. Those people don’t have these items for sinister or illegal purposes; they have them for self-defense. At the same time, others may have them for hunting purposes, depending on their home state. Most citizens also follow gun safety guidelines, and others have a keen interest in all aspects of gun ownership from how to clean a gun to which ammo is useful for their chosen firearm. The courts argue that gun owners are taking advantage of resources made available to them, such as sites like Bulkmunitions (https://bulkmunitions.com/brass-vs-steel-ammo/), to get the right information for their growing interest.

The Court also rejected an argument that an unusually dangerous weapon would fall outside of the Second Amendment’s protection. Ignoring the mass shooting hysteria both the district court and the dissent fell for, the Court recognized that there was no valid way to determine how dangerous a weapon was.

The Fourth Circuit says people have the right to defend their homes and, within reason, defend their homes the way they want to defend them. A ban on certain classes of weapons directly affects that freedom to defend a home the way a citizen chooses. So the ban conflicts with the Second Amendment.

Finding the Maryland ban implicated the Second Amendment, the Court was faced with what to do about it. There are two types of scrutiny, or levels of review, that could be applied. Intermediate scrutiny, which is how the district court looked at the matter, requires a reasonable fit between a regulation and a substantial government objective. Strict scrutiny, on the other hand, requires the government to use the least restrictive means possible to achieve a compelling government interest.

There is a pretty big difference between the two. One is “yeah close enough” and the other is “be careful, that’s the constitution you are screwing with.”

So here is how the case ends up.

…the FSA’s ban on semi-automatic rifles and larger-capacity magazines burdens the availability and use of a class of arms for self-defense in the home, where the protection afforded by the Second Amendment is at its greatest.

Banning law-abiding citizens from owning the most popular type of semi-automatic rifles sold in the United States creates a Second Amendment problem. There are legitimate reasons for preferring these weapons for home defense, including accuracy, recoil, and reloading. The Court says it’s your house, you get to pick how to defend it.

Strict scrutiny puts a much higher burden on the government to support its actions. And in the Fourth Circuit, the government couldn’t meet that burden when it comes to banning popular guns. While it sounds like the Court can live with regulation, it can’t and won’t live with prohibition. For good reason; constitutional infringements should be strictly watched and rarely allowed.

There is a whole lot more discussion in the long opinion. There is a dissent that raises interesting points. But if you want that information, read it yourself. It’s worth it, no matter which side you take on the gun rights debate. And if it’s not worth it you, well, maybe think twice before hopping back into the debate.

The Second Amendment is the lightning rod of the day. No other amendment makes people as crazy or passionate. Arguments over it are increasingly vehement. But they are also the most nonsensical.

People yell and stomp over the pure feelings of this issue. They don’t seek actual facts. If you want people to take you seriously and listen, you should know what you are talking about. Judge Traxler and Judge Agee of the Fourth Circuit Court of Appeals know what they are talking about. That’s why you should listen to them.

19 Comments on this post.

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  • Mike
    12 February 2016 at 11:32 am - Reply

    What part of the dissent did you find interesting? I didn’t find King’s argument too persuasive and kind of thought the equal protection argument of the plaintiffs was a stretch anyway.

    • Josh
      12 February 2016 at 12:18 pm - Reply

      He lays out a case for why the guns should be banned and that interests me. One of the most frustrating things going on right now is the inability to have any civil discussion about important issues.

      So I thought the dissent made an argument against the Second Amendment protection in this case that, though I did not agree with it, was interesting.

      I always like to read dissents – they add more to my understanding of the majority opinion.

  • Keith
    12 February 2016 at 11:58 am - Reply

    Saying a ban on an entire class of weapons violates the second amendment strikes me as the right call. Something is always going to be the most dangerous class of weapon available on the open market. Ban that and something else will take its place. Wash, rinse, repeat… That can’t be the standard by which rights are measured.

    The dissent has some interesting points, indeed. I also found the use of Miller’s “common use at the time” clause interesting in light of their reasoning that they can ban unusually dangerous weapons, even if they claim they can’t define what is “dangerous”.

    Can you have a machine gun? No, sorry but the GCA of 1934 limited them and we only allow you to have what people have lot of.

    Can you have a hand grenade? Yes if people have a bunch of them, but no if they don’t? Nice standard, ya got there.

    p.s. Props on remembering all 13, but isn’t it “United States Courts of Appeals”?

    • Josh
      12 February 2016 at 12:19 pm - Reply

      The Federal Circuit always throws me off, but I knew there was one more besides the 11 plus DC. And yes, it should have said Courts of Appeals. Too many plurals threw me off.

      • Keith
        12 February 2016 at 12:27 pm - Reply

        Up here in NY, the lowest court is the Supreme Court & that throws everyone off. I take it you never went near a patent case then.

  • Scott Jacobs
    12 February 2016 at 12:33 pm - Reply

    Did they actually decide anything? I thought they just said “No, don’t use Intermediate Scrutiny, use Strict Scrutiny. Now try again.”

    That doesn’t sound like it was ACTUALLY decided, since it goes back to start all over…

    • Josh
      12 February 2016 at 12:57 pm - Reply

      I think the opinion was pretty clear on how it should be decided. If the district court ruled the same way under strict scrutiny, I cannot imagine the 4th Circuit not reversing.

      But you bring up a good point. Sometimes appellate courts don’t act in the most efficient way, but I assume they have some reason for what they are doing…

      • Ahcuah
        12 February 2016 at 5:01 pm - Reply

        I suppose appellate courts don’t act in the most efficient way, but it sure seems that when they want to screw you over “judicial economy” seems to be the solution of choice.

      • Scott Jacobs
        12 February 2016 at 5:54 pm - Reply

        Why would it reverse? Similar laws in California have been upheld – I don’t see why this court would be any different…

        • dm
          13 February 2016 at 1:29 pm - Reply

          If you’re referring to the District Court, it would reverse because it was basically told to do so by the Court of Appeals. Should the District Court decide to apply strict scrutiny and still find the Maryland law constitutional it will likely be reversed by the Court of Appeals in an opinion that makes the District Court judge look like an idiot. It’s rare that a District Court judges don’t do what they are “told” in situations like this (though it does sometimes happen).

          • Scott Jacobs
            13 February 2016 at 8:11 pm -

            No, it wasn’t. Strict Scrutiny is frequently passed by laws that prohibit certain acts that fall within certain realms – all that needs be done is show that the State has a compelling interest – hell, putting the Japanese in camps passed it, after all.

            I’ve little doubt that the lower court will find that Strict Scrutiny is met…

  • Mike
    12 February 2016 at 12:54 pm - Reply

    Thanks Josh. I try to read opposing views to, but IMO the dissent by King seemed to make a better argument towards legalization of automatic weapons than one of an AR like firearm being inherently more dangerous. Though I suppose it is interesting to see the logical jumps being made for and against 🙂

  • Jason Truitt
    12 February 2016 at 1:39 pm - Reply

    I’ve often thought states and cities would find it easier to ban or more heavily regulate pistols than any long gun. They’re the ones that are most often used in crimes and are most often stolen, to later be used in a crime. I think they’d have an easier time passing strict scrutiny if they actually targeted the guns that do he most damage.

    • Keith
      12 February 2016 at 1:41 pm - Reply

      That was the essence of what DC tried to do when they made handguns non-functional in the home. It was struck down.

      NYC last year had a case where the Judge said that if it’s on your person, it’s fine — but if it’s not immediately on your person, it had to be locked up. I’m not sure if it was appealed, but I thought that was a novel approach to say the least.

  • Cornflake S. Pecially
    12 February 2016 at 1:40 pm - Reply
  • Jason Truitt
    12 February 2016 at 2:01 pm - Reply

    I know, all I’m saying is that pistols are an easier target for the various forms of scrutiny. It’s still not easy and of course the correct arguments have to be made, and I don’t believe they were. I believe that there are dozens of potential regulations that fall short of a complete ban that would stand, although I did say “ban or regulate”.

    • Keith
      12 February 2016 at 2:04 pm - Reply

      Gotcha. I focused on the “ban”. I agree that regulation is wide open, but that’s mostly because while SCOTUS identified the centrality of the right in the home, under Heller – they left the most predictable question wide open without a hint of advice. Namely, where else does it apply?

  • Joseph
    16 February 2016 at 4:59 pm - Reply

    >The Court also rejected an argument that an unusually dangerous weapon would fall outside of the Second Amendment’s protection. Ignoring the mass shooting hysteria both the district court and the dissent fell for, the Court recognized that there was no valid way to determine how dangerous a weapon was.

    This is absurd. We all know that knives, pistols, automatic rifles, rocket launchers, autocannons, naval artillery and nuclear missiles are roughly increasing in order of “dangerousness” even if nobody’s done a careful study, in ways that have nothing to do with their prevalence.

    Objective criteria for “dangerous” may be hard or impossible to determine, but the same is true for what may or may not be “cruel”, which is why people (whether judges or legislators) are expected to use their judgment, rather than declaring that tackling this difficult and fuzzy problem is universally invalid.

    • Josh
      16 February 2016 at 5:11 pm - Reply

      Nope, not absurd at all. You are confusing the word “danger” with “power”.

      Your example demonstrates the point. What are the chances you will be killed by a nuclear missile tomorrow? How about a handgun? How about a knife? Danger is the possibility of suffering a harm. So your list is actually backwards. Those weapons are roughly decreasing in order of dangerousness, not increasing.