By Dave Workman
Senior Editor
Gun rights advocates were cheering when a federal appeals court reversed a lower court ruling in a challenge of Maryland’s 2013 gun control law that banned so-called “assault weapons” and magazines with a capacity of more than ten rounds, saying that such laws must be reviewed under a “strict scrutiny” standard.
The case was remanded back to the lower court for consideration under that standard, which several legal scholars have suggested may doom the law, known as the Maryland Firearms Safety Act.
The 2-1 ruling, in a case called Kolbe v. Maryland, came from the U.S. Court of Appeals for the Fourth Circuit. It was immediately hailed by gun rights leaders, and criticized by anti-gunners. Maryland Attorney General Brian E. Frosh, who supported the law as a state senator, contended that the appeals court majority is wrong, the Baltimore Sun reported.
When the case was first heard, the judge upheld the law using “intermediate scrutiny” as the benchmark. But that’s not good enough when a fundamental civil right is involved, the appeals court intimated.
Chief Judge William B. Traxler, who wrote the majority opinion, explained it this way: “In our view, Maryland law implicates the core protection of the Second Amendment- ‘the right of law-abiding responsible citizens to use arms in defense of hearth and home,’ and we are compelled by Heller and McDonald v. City of Chicago as well as our own precedent in the wake of these decisions, to conclude that the burden is substantial and strict scrutiny is the applicable standard of review for Plaintiffs’ Second Amendment claim. Thus, the panel vacates the district court’s denial of Plaintiffs’ Second Amendment claims and remands for the district court to apply strict scrutiny.”
The entire ruling may be read here. An analysis of the case by David Kopel appeared in the Washington Post blog.
While this is a victory, the case is far from over. It may be just the end of Round One or Two. Frosh told the Washington Post he plans to appeal, either to the full Fourth Circuit or to the US Supreme Court.
If the high court takes the case, it would set the stage for a determination as to whether the Second Amendment protects so-called “assault weapons,” which are generically called “sport-utility” or “modern sporting” rifles by gun owners and the industry. These are semi-automatic look-alikes of military weapons, and anti-gunners want them banned primarily due to their allegedly menacing appearance and the fact that they can fire lots of rounds fast, provided they have large enough magazines.
Maryland was one of the states to adopt tougher gun laws in the wake of the 2012 Sandy Hook tragedy, despite the fact that it already had some of the strongest laws in the country, and it is several states away from where the incident happened.
Dissenting Judge Robert B. King doesn’t think the firearms in question are protected, writing in his dissent that the guns banned in Maryland “are exceptionally lethal weapons of war” so they may not be protected.
However, many gun rights advocates have insisted over the years that the Second Amendment was written to protect exactly those kinds of firearms; guns that could be used if a citizen militia was called up in an emergency and required to provide their own weapons. Gun control proponents who maintain, despite two high court rulings to the contrary, that the Second Amendment only protects a state’s right to form a militia may find themselves boxed into a corner on this point.
A state militia would be armed with the very kinds of weapons that Maryland’s law prohibits. Judge King, a Bill Clinton appointee, contended in his dissent that this ruling puts the Fourth Circuit at odds with other federal appeals courts. But Judge Traxler, also a Clinton appointee, said in his ruling that “we ultimately find these decisions unconvincing.”
The ruling was hailed by Chris Cox, executive director of the National Rifle Association’s Institute for Legislative Action. In a statement to the press, Cox said, “The Fourth Circuit’s ruling is an important victory for the Second Amendment. Maryland’s ban on commonly owned firearms and magazines clearly violates our fundamental, individual right to keep and bear arms for self-defense. The highest level of judicial scrutiny should apply when governments try to restrict our Second Amendment freedoms.”
Also weighing in was Lawrence Keane, senior vice president and general counsel for the National Shooting Sports Foundation. He said the industry organization is “greatly heartened” by the ruling.
“As this important case goes forward,” Keane said, “NSSF will continue to work with our co-plaintiffs to ensure that our citizens’ Second Amendment rights are protected and that the lawful commerce in firearms is restored in support of this constitutional protection.”
