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« George Soros, Hilliary, and Priorities USA | Main | We're in the very best of hands.... »

Great Fourth Circuit decision in Kolbe case

Posted by David Hardy · 4 February 2016 01:27 PM

Opinion, in pdf, here. It's a challenge to Maryland gun laws mostly directed at "assault weapons."

The court finds that AWs are in common use: "we note that in 2012, the number of AR- and AK-style weapons manufactured and imported into the United States was more than double the number of Ford F-150 trucks sold, the most commonly sold vehicle in the United States." It rejects the argument that magazines are not "arms." It also rejects claims that "dangerous and unusual weapons" describe AWs, asking where the line could be drawn.

It then holds that strict scrutiny (hurrah!) applies, since the ban applies in the home and the law substantially burdens that right, and remands to the lower court so that it can assess the law in that light.

The majority does reject the Equal Protection challenge to the law's exempting retired law enforcement officers; Judges Traxler and Agee dissent from this, feeling that it does pose an EP problem.

Parts 5 and 6 were authored by Judge Traxler, and hold that the ban on "copies" of the listed firearms was not void for vagueness.

Judge King dissents, and it can be summed up in one quote: "Let's be real: The assault weapons banned by Maryland's FSA are exceptionally lethal weapons of war. In fact, the most popular of the prohibited semiautomatic rifles, the AR-15, functions almost identically to the military's fully automatic M16."

(The majority's response to his dissent is worth quoting: "Our distinguished dissenting colleague asserts that we have imprudently and unnecessarily broken with our sister courts of appeal and infers that we will bear some responsibility for future mass shootings. In our view, inferences of this nature have no place in judicial opinions and we will not respond beyond noting this."

UPDATE: a dissent in a panel opinion can have several functions. (1) In the event that there's a move to reconsider en banc, or a petition for cert, the fact that it was a divided opinion with strong dissent is something that other judges might weigh in considering whether to grant en banc or to take cert. (2) If another court is considering relying on the decision, it puts the judges of that court on notice that there was another side to the issue.

11 Comments | Leave a comment

Carl from Chicago | February 4, 2016 4:28 PM | Reply

Thanks David. Fantastic. Will look forward to reading this tonight.

FWB | February 4, 2016 5:38 PM | Reply

I love how the courts can squeeze out exemptions to "EQUAL" protection when nothing in the 14th admits of any allowable exemptions. Truthfully, the 14th prohibits and and all unequal protections such as law enforcement officers and even to hate crime laws that protect various groups. During the past 20+ years that I have studied the Constitution and judicial decisions based on "interpretations" of the Constitution I am continually amazed at the ability of judges to use their crystal balls to split hairs and arrive at such decisions.

The text of the Constitution is easy to understand and leaves no room for questions. Fundamental law theory states the subordinate cannot define the superior. As the courts are subordinate to the Constitution, and in the case of lower courts to the Congress, the courts really have no legitimate authority to interpret the words, clauses, and phrase of the Constitution. The sole arbiters of the Constitution are those who are superior to it, the People through their States who created the Constitution which in turn created the government.

The claim to the power to decide what the Constitution means is merely usurpation of power not granted.

Jeff | February 4, 2016 7:52 PM | Reply

Besides exercising one's ego, is there another value to writing a dissent at this level? Does a dissent carry some persuasive weight?

denton | February 4, 2016 8:17 PM | Reply

I suppose that a dissent serves to list the arguments specifically rejected by the majority.

The comment that the AR-15 is functionally nearly identical with the M-16 is once again proof that there is no requirement for actually understanding something before making a ruling on it. People have been hunting and target shooting with self loading rifles for well over 100 years. Why the sudden angst?

Jeff | February 5, 2016 6:24 AM | Reply

Does this create a circuit split, for purposes of attracting Supreme Court interest?

Carl from Chicago | February 5, 2016 6:52 AM | Reply

Jeff...yes it creates a split but Maryland will likely petition for en banc review before the full circuit court.

By the way, seems like Iowa joined in support of maryland's gun ban. They seemed like an outlier from the usual cadre of gun control states like NJ, CA, IL, etc.

oldguy replied to comment from Jeff | February 5, 2016 8:59 AM | Reply

Jeff:

Because it is black and scary - now does that sound racist :)

MAINSAIL | February 7, 2016 5:09 PM | Reply

I agree somewhat with the majority analysis of ‘dangerous and unusual’ however I think they missed the easiest and intended definition. The measure of a weapons dangerousness is in its inability to discriminate between friendly actors and unfriendly actors. A hand grenade is dangerous because it affects everyone in a specific area (blast radius) and cannot distinguish the threatening players from the bystanders. Grenades are unusual in that they do not have a lawful purpose. One could likewise argue the same for the fully automatic M16 due to some difficulty in control of outbound rounds, while the semiautomatic nature of the AR15 allows for more accurate fire.

Nevertheless, I wish the courts would dispense with the legal mumbo-jumbo and decide such cases based on a simpler two question test; (1) does the law affect an “arm” and (2) does that law infringe on the citizens’ right to keep and bear it. If the answer is yes to both questions the law is unconstitutional.

rspock | February 9, 2016 9:42 AM | Reply

Denton: "The comment that the AR-15 is functionally nearly identical with the M-16 is once again proof that there is no requirement for actually understanding something before making a ruling on it...."

I think it's worse than that. It's more a case of inventing a rational to support a desired result - rationalization. My support: these people repeatedly ignore vetted facts laid out before them.

Miles | February 10, 2016 8:06 PM | Reply

"It's more a case of inventing a rational[e] to support a desired result - rationalization."

Of course it is. Happens all the time.
Look how Roberts twisted "fine" into "tax" with the ACA so he could rationalize that alongside congress having the power to tax.

Lawyers have been forever twisting words and ideas to try and make them mean whatever they wanted. And they've taken this tactic right along with them onto the bench when they recognized they wouldn't suffer any consequences, no matter their oaths.

They will swallow a camel or strain at a gnat if it will advance their predetermined result and it doesn't matter which side of the political spectrum they're on.

The current assessment is that the progressive liberal politician/jurist is anti-gun and the conservative somewhat less so.

They both hate, and deep down fear, the political power that the gun gives the unwashed, if, and when they ever decide to take exception to being continually screwed with.

AvgJoe | February 19, 2016 9:10 AM | Reply

This is a classic example of why some of the Founders demanded a Bill of Rights. Because wordsmiths wrote the Constitution and many of the Founders could see there was a need to be exact with the Bill of Rights and not be word-smithed by wordsmiths. But the wordsmiths attacked the Bill of Right with their twisted logic in words. This brought on the 13th Amendment which the bankers at the Crown picked a fight with the US so English troops could burn the Library of Congress to destroy the records of the states that ratified the 13th Amendment. Which is what the War of 1812 was really all about. Nevertheless, in 1819 VA was the 13th state needed to ratify the 13th Amendment and they did so. The states and territories for years after that published the Bill of Rights with 13 Amendments. Abe the atheist Lincoln stopped the states and territories from printing the Bill of Rights with the 13th Amendment.
Fact of the matter is the evilness of the international bankers invented lawyers to do as we are seeing a classic example of, destroy the rights of the people with word smithing.

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