Fourth Circuit Sets the Stage for a New National Gun Ban

In an unusual opinion that at times reads more like an op-ed at the New York Times than a legal ruling, the 4th Circuit Court last week upheld Maryland's highly restrictive "Firearms Safety Act."  It's apparent that the 4th Circuit acted in anticipation of a Hillary Clinton victory in November, in which case its decision would have gone unchallenged by the Supreme Court or affirmed, thus substantially laying the groundwork for the overturn of the Supreme Court's ruling in District of Columbia v. Heller, and with that the effective national evisceration of the 2nd Amendment under a second Clinton administration.  The 4th Circuit, like a lot of people, miscalculated, and their judicial overreach should push a heretofore reluctant Supreme Court to reinforce the Heller decision.

The 4th Circuit's decision in Kolbe et al v. Maryland was a direct, if often legally incomprehensible attempt to greatly limit the Supreme Court's seminal decision in Heller and set the stage for a new national ban on semi-automatic rifles.  Heller held that the 2nd Amendment confers an individual not a collective right to keep and bear arms.  Kolbe, so long as it stands, says this individual right does not extend to any firearm with military utility, which is arguably pretty much every gun ever made.

That's for the long term.  More immediately, the decision transparently is an attempt to pave the way for a return of a national ban on AR-15-type rifles, falsely labeled by the Court and various gun banners "assault rifles."  Had Hillary won the election in November, as the Court expected, it would have been a done deal. 

Following a decision against the plaintiff gun owners in the Maryland District Court, Kolbe went to the 4th Circuit on appeal over a year ago.  Oral arguments in 2015 appeared to go in favor the plaintiff/appellants when the case was heard before a mostly sympathetic three-judge panel, giving Maryland gun owners some sense of hope.  In 2016, that panel vacated the District Court's ruling as unconstitutional in that the lower court had applied an inappropriate standard of "intermediate scrutiny" to the Maryland statute.  The panel remanded the case to the District for rehearing under the appropriate standard of "strict scrutiny" that ordinarily applies to laws that seek to restrict fundamental constitutional rights. 

At this point, the rest of the left-leaning 4th Circuit stepped in, vacating their own panel's decision, and ordered the case to be reheard en banc (before the entire 4th Circuit).  That happened in May 2016, and it's likely the Court reached its decision not too long after but awaited the outcome of the November presidential election to issue the opinion.  Expecting a Clinton victory, the decision would have given Hillary the entry point she needed to reimpose the "assault rifle" ban – thus the relatively breathtaking nature of the decision, which did not merely disagree with the panel that found that the District Court did not apply the proper standard of review, but rather found that the 2nd Amendment did not even apply to the to the case. 

That determination was based on a highly tendentious argument that takes five words from the Heller decision – that the 2nd Amendment does not apply to "M-16 rifles and the like."  In specifying the M-16, the Supreme Court clearly meant weapons that are fully automatic, such as machine guns, which have long been subject to strict regulation.  This is what distinguishes an M-16 from an AR-15, and why only the former is an assault rifle.  Instead, the 4th Circuit devised an argument – quite as if it were the appellee rather than the court hearing the appeal – that the AR-15 (and the large-capacity magazines that feed it) are essentially indistinguishable from M-16 and other weapons with particular military utility, even though neither the U.S. military nor any other military has adopted the AR-15.  For analyses of the factual and legal contortions the 4th Circuit goes through to get to that conclusion, National Review has good stuff here and here.

What is more interesting politically is that most of the 4th Circuit's opinion is really surplusage – that is, gratuitous commentary that lawyers also call dicta.  While not binding on other courts, dicta can be cited and added to the briefs of gun control advocates in future cases, form the basis of more restrictive substantive rulings by this Court or other courts, or support legislative initiatives in blue states to further restrict 2nd Amendment rights.

Much of the 4th Circuit's dicta surround the efficacy and success of the 1994 statute that banned AR-15-type rifles, which expired in 2004. The plaintiffs in Kolbe noted the ban's almost nonexistent impact on reducing criminal activity and, similarly, the negligible effect of the lifting of the ban.  Through extraneous commentary and footnotes, the Court repeatedly suggests that the ban was effective despite convincing unbiased evidence to the contrary. 

Most of the rest of the 4th Circuit's dicta constitute an explanation that even had the guns subject to the ban been subject to the 2nd Amendment, the trial court's selection of a lower standard of review (intermediate scrutiny) was appropriate.  This obviously to buttress the opinion in case the Supreme Court does go after it, along with an accounting of three other Circuits (Second, Ninth, and Seventh) that have upheld various state restrictions on similar weapons since the Heller ruling but on less aggressive grounds.

Despite Clinton's loss, the 4th Circuit decided not to back off its decision and put down a marker to challenge the Supreme Court.  It's a bold step but not an unreasonable one for these leftist jurists.  The Supreme Court has proved reluctant to take 2nd Amendment cases and has basically done little to support Heller.  But in Kolbe, the 4th Circuit has gone far beyond what the other Circuits have done, boldly rewriting Justice Scalia's decision in a fashion the late Justice would never have condoned.

The case will be appealed, and Justice Gorsuch should be on the bench by the time the decision for review is ripe.  It's incumbent on the Roberts Court to act appropriately, make the justices of the 4th Circuit pay for their gamble, and put some meat on Heller.  A failure to do so would set the stage for a quick national ban in the event that Trump does not win re-election in 2020.

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