The
laws that have been proposed, speeches given, and legislation that has been
passed over the past few years is troubling to say the least and unconstitutional
at worst. While we have been able to fight and defeat many of these bogus
promises of safety, there are a few that managed to get on the books and have
been restricting the rights of second amendment practitioners ever since. One
of the more egregious and confusing laws which was brought to my attention
recently is one that comes from, don’t be shocked, California.
A number
of years ago (effective January 1, 2001), legislators in the Fool’s Gold state enacted PC 12131 which established the “Safe Handgun Roster.” While sold to the
public as a means to limit the sale of unsafe firearms in the communist bloc,
the reality of the legislation is that it was a means to shake down the
firearms industry by imposing unnecessary testing and exorbitant fees on an
annual basis. No wonder why Leland
Yee turned to the black market!
The definitions of those firearms that meet the criteria to get
on this list was then expanded upon in 2007 as “legislators passed AB 1471
which mandated that all semi-automatic pistols must employ microstamping
technology.” What this now means is previous generations of firearms are safely
housed on this arbitrary list while new generations are considered un-safe. A
perfect example of this is the cluster that one law enforcement finds
themselves in as they attempt to transition to the 4th generation Glock 19 as
their service weapon. According to the Attorney General, the office of which
previously exempt law enforcement from selecting from the list, they are a
generation too late and therefore cannot use their newly purchased roster of
service side arms.
However, not all the news recently makes you want to slam your
head against the wall repeatedly. Come to think of it that might make that a
semi-automatic assault wall which would also be illegal in California. It also
used to be illegal in Maryland until the good news was handed down by the
Maryland 4th Circuit Court of Appeals in the Kolbe v. Hogan
decision. The case challenged the 2013 Maryland arms
prohibition statute which bans the sale of firearm magazines that hold
more than 10 rounds and also bans many firearms, by labeling them as “assault
weapons.”
Some of the important highlights which were reported in the Washington Post include:
In a
2-1 decision written
by Chief Judge Traxler [appointed by President Clinton in 1998], the Fourth
Circuit held that strict scrutiny is the proper standard of review for bans on
common arms, such as those at issue in Kolbe.
The case was remanded to the district court, which had applied the wrong
standard, namely a weak version of intermediate scrutiny. The Maryland attorney
general announced that he will seek en banc or Supreme Court reversal of the Kolbe decision. Below is a summary of
the most important parts of the Kolbe decision.
Why the arms are
part of the Second Amendment
Magazines holding more than 10 rounds are “common” and
“standard.” There are more than 75 million of them in the United States.
Indeed, “most pistols are manufactured with magazines holding ten to 17
rounds.” In fact, “Virtually every federal court to have addressed this
question” has found that magazines over 10 rounds are in “common use,” and thus
are covered by the Second Amendment.
Why strict scrutiny is appropriate
First, because the prohibition “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.”
Second, because the burden is substantial, “not merely
incidental.” For example, the statute imposes “a complete ban” on “AR-15
style rifles—the most popular class of centerfire semi-automatic rifles in the
United States.” Notably, the ban “also reaches every instance where an AR-15
platform semi-automatic rifle or LCM [large capacity magazine] might be
preferable to handguns or bolt-action rifles–for example hunting, recreational
shooting, or competitive marksmanship events, all of which are lawful purposes
protected by the Constitution.”
Strict scrutiny was also
appropriate for the magazine ban, because “a citizen’s ability to defend
himself and his home is enhanced with an LCM.” For example, the inherent
difficulties of some defense situations mean that citizens often need the
ability to fire multiple shots, and changing magazines while under violent
attack may not be possible.
A statute that “completely
prohibits, not just regulates, an entire category of weaponry . . . might
be ‘equivalent to a ban on a category of speech.'” (Quoting D.C. Circuit Judge
Kavanaugh’s dissent in the Heller II case.) The extensive prohibition is
“akin to a law that ‘foreclose[s] an entire medium of expression.’ City of
Ladue v. Gilleo, 512 U.S. 43, 55 (1994). Such laws receive exceptionally
rigorous review in the analogous context of the First Amendment, id., and we
see no reason for a different method here.”
Unlike some other courts
that have upheld magazine and firearms bans, the Kolbe majority
did not purport to be expert in gun-fighting tactics, or to claim that judges
know what law-abiding citizens “need” for self-defense. To the contrary, the
4th Circuit recognized that under the Second Amendment and Heller, choices about self-defense are
reserved to the defenders. For “whatever reason” particular arms are preferred
by particular law-abiding citizens, “The right to self-defense is largely
meaningless if it does not include the right to choose the most effective means
of defending oneself. . . . The extent of danger—real or imagined—that a
citizen faces at home is a matter only that person can assess in full.”
(Quoting 7th Circuit Judge Manion’s dissent in Friedman
v. Highland Park).
In the short term, this
reestablished the second amendment rights of the citizens of Maryland but that
it the short sighted measure of this case. The reaffirming ramifications of
this decision could potentially be applied across the nation serving as the judicial
support, firepower if you will, sometimes needed to protect and defend affronts
to our Constitutional rights. Nicely done Maryland. Glad there are some in the
courts will to take a stand and do something that the President refuses to do… defend
the Constitution of the United States of America!
