Kolbe v. Hogan Updated: Added a negative

It is clear that some states feel that the best thing to do is to disarm their citizens. We’ve seen this happening for years. The gun bans start small and just grow. With each small step the next step is larger and makes it harder and harder to keep and bear arms.

The people pushing for gun bans of one sort or another don’t care about the constitution. They have made that clear in words and deeds. They feel that they have a right to a “do over” in regards to the right to keep and bear arms because of things. Yet they do not want to do it via a constitutional amendment. Instead they attack everything to do with guns in order to make an infringement tolerable to the masses.

As an example we have an article in The Atlantic:

These new attacks are so extreme that even laws supported by the gun industry are coming under threat. Until not so long ago, an overwhelming majority of leaders in the firearms industry, in which I spent more than 25 years as a sales executive, accepted the necessity of regulations like the ones that flowed from the 1939 Supreme Court case U.S. v. Miller, which upheld the 1934 National Firearms Act. That statute severely restricted the sale of sawed-off shotguns, silencers, and fully automatic weapons such as the “tommy guns” used by criminal organizations like Al Capone’s.

Miller thus clarified the balance between individual freedoms and collective safety as a sound constitutional test for all gun laws. This finding led to other bedrock laws such as the federal background-check system, or NICS, which was instituted in 1998. This statute protected citizens by making it harder for criminals to obtain firearms, while also providing reasonable liability protection for responsible gun manufacturers. Up until the late 2000s, most people I knew in the industry approved of laws enabled by the Miller standard that helped prohibit “bad guys” from buying guns.

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Except that Miller didn’t actually say anything about balancing rights. What it said was pseudo-quote “because nobody came before us to tell us that a sawed off shotgun is a military arm we have to rule that sawed off shotguns are not covered by the second amendment”. The terms they used actual protect military-style arms more than civilian-style arms.

The Miller decision gave more protections to any firearm used by any military than it did to a fudd’s lever action rifle. Even though lever-actions were used by the military they were never awarded a large U.S. military contract thus they were less likely to be considered militia arms.

States heard the cries of gun banners demanding that guns be banned and said “it is unconstitutional” but they looked for ways around it. While gun grabbers were very vocal in their demands, the voices of gun owners and gun rights were less likely to be heard.

The blunt truth is that the second amendment has nothing to do with hunting or personal protection from individuals. That is a happy side effect. The second is about preserving our rights against tyrannical government, foreign or domestic.

We had just fought a major war with one of the super powers of the time. We won because of many issues but one of the biggest was that we had the means to wage war. The People had both small arms and “crew served weapons”. Not just bearable arms, but cannon.

The “shot heard around the world” happened because the British were marching to confiscate arms. They were intending to remove gun powder, guns and cannon from the colonist. They were met with armed resistance and the U.S. of America was birthed, screaming and crying into battle.

People don’t like to be labeled with negative terms. They seek to avoid it. For the last few years we attempted to avoid the term “far right extremist” and “racist” and “child killer”. These labels are powerful. It is only now that we are starting to look the accusers square in the eye and say “Fuck you.” The words lost most of their meaning.

The number of times we have been told that we are murders because we didn’t immediately give up our guns when somebody else shot a child is nearly countless. It happens everytime we stand up for our rights. The gun grabbers want to push that lable of “murder” on anybody that disagrees with them.

After Sandy Hook social media was awash with people demanding that we give up our guns. One person was adamant that anybody that wanted to own an AR-15 was responsible for the murder of those children and teachers. I turned the argument upside down and accused her of wanting children to die because she would not allow teachers to be armed. I used every tactic that had ever been used on us on her.

I found out from a friend that knew her personally that I had reduced her to tears. She was an older lady who had been teaching for years and was well known for her love of children (In a good way J.Kb.!). She couldn’t understand why anybody would say she hated children and wanted them killed.

She never figured out that she had been saying exactly the same things just a few posts before about people that owned AR-15s.

State legislatures are filled with gun grabbers. They hear these cries from the people and are able to say to the people “We will do something about this!” They are willing to say that they are going to ban or limit some part of gun ownership and then say it does not infringe.

There were a few ways of doing this pre-Bruen. The first was to claim that the second amendment only applied to militia and by extension was a collective right reserved for the state. Heller said “nope, it is an individual right.” The gun grabbers then like to argue that the law is balanced against government/society needs.

The argument against an individual right comes from the Miller decision which mentioned a militia wouldn’t use a sawed off shotgun so a SBS isn’t covered. It said nothing about means-end

(f) None of the Court’s precedents forecloses the Court’s interpretation. Neither United States v. Cruikshank, 92 U.S. 542, 553, 23 L.Ed. 588, nor Presser v. Illinois, 116 U.S. 252, 264-265, 6 S.Ct. 580, 29 L.Ed. 615, refutes the individual-rights interpretation. United States v. Miller, 307 U.S. 174, 59 S.Ct. 816, 83 L.Ed. 1206, does not limit the right to keep and bear arms to militia purposes, but rather limits the type of weapon to which the right applies to those used by the militia, i.e., those in common use for lawful purposes. Pp. 2812 – 2816.
— Heller

Here is the wording which the gun grabbers hang their means-end arguments on from Heller:

2. Like most rights, the Second Amendment right is not unlimited. It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose: For example, concealed weapons prohibitions have been upheld under the Amendment or state analogues. The Court’s opinion should not be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms. Miller’s holding that the sorts of weapons protected are those “in common use at the time” finds support in the historical tradition of prohibiting the carrying of dangerous and unusual weapons. Pp. 2816 – 2817.

“Is not unlimited” was taken to mean that there are laws that are acceptable infringements. The only question was what should be used to determine what is allowed and what was not.

The answer the courts came up with was “means-end”. As stated before, this allows the court to run a balancing act with their thumb on the scales. First they use the phrase in Heller “… such as self-defense within the home” to indicate what the “core right” protected by the second amendment is. This allows the court to decide if a law is infringing on the right of the individual to protect themselves within the home.

If it is not that single core right then it is a lesser right and gets less protection. Once that is decided the court then gets to balance the “good” that the government says a law will do against the level of infringement.

On cross-motions for summary judgment, a distinguished judge in the District of Maryland ruled in August 2014 that the FSA is constitutional and thus awarded judgment to the defendants. See Kolbe v. O’Malley, 42 F.Supp.3d 768 (D. Md. 2014) (the “Opinion”). Addressing the plaintiffs’ Second Amendment claims under the Supreme Court’s decision in District of Columbia v. Heller, 554 U.S. 570, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008), the district court expressed grave doubt that the banned assault weapons and large-capacity magazines are constitutionally protected arms. Nevertheless, the court ultimately assumed that the FSA implicates the Second Amendment and subjected it to the “intermediate scrutiny” standard of review. In the wake of Heller, four of our sister courts of appeals have also rejected Second Amendment challenges to bans on assault weapons and large-capacity magazines, including two (the Second and District of Columbia Circuits) that utilized an analysis similar to the district court’s.

–Kolbe v. Hogan

Here the 4th circuit court describes what the district court did. The district court “assumed” that the Firearms Safety Act was an infringement but only for the purposes of analysis. The court then decided that because the core right of the second amendment wasn’t implicated that they would use intermediate scrutiny. Under intermediate scrutiny the district court ruled that the FSA was constitutional.

Even though the court agreed that “large capacity magazines” and “assault weapons” were arms under the second amendment definitions.

The case was appealed to the fourth circuit court where a three judge panel decided that the district court got it wrong. They did this by moving their thumb from “intermediate scrutiny” to “strict scrutiny”.

In early February of 2016, a divided three-judge panel of this Court vacated the Opinion’s Second Amendment rulings and remanded to the district court, directing the application of the more restrictive standard of “strict scrutiny” to the FSA. See Kolbe v. Hogan, 813 F.3d 160 (4th Cir. 2016). Pursuant to its reading of Heller, the panel majority determined that the banned assault weapons and large-capacity magazines are indeed protected by the Second Amendment, and that the FSA substantially burdens the core Second Amendment right to use arms for self-defense in the home. We thereby became the first and only court of appeals to rule that a ban on assault weapons or large-capacity magazines deserves strict scrutiny. Meanwhile, the panel affirmed the district court’s denial of the plaintiffs’ Fourteenth Amendment claims. On March 4, 2016, the panel’s decision was vacated in its entirety by our Court’s grant of rehearing en banc in this case. We heard argument en banc on May 11, 2016, and the appeal is now ripe for disposition.

The key words are “…substantially burdens the core Second Amendment right to use arms for self-defense in the home.” Even here the three judge panel is still considering the second amendment to have a “core right”. If the item isn’t used for self-defense in the home it is not protected under the second amendment.

The decision of the three judge panel was appealed by the state and the fourth circuit court vacated the panels ruling because it decided to hear the appeal. In other words: Our little court didn’t get it right so we are getting a do over with 9 judges.

As explained below, we are satisfied to affirm the district court’s judgment, in large part adopting the Opinion’s cogent reasoning as to why the FSA contravenes neither the Second Amendment nor the Fourteenth. We diverge from the district court on one notable point: We conclude — contrary to the now-vacated decision of our prior panel — that the banned assault weapons and large-capacity magazines are not protected by the Second Amendment. That is, we are convinced that the banned assault weapons and large-capacity magazines are among those arms that are “like” “M-16 rifles” — “weapons that are most useful in military service” — which the Heller Court singled out as being beyond the Second Amendment’s reach. See 554 U.S. at 627, 128 S.Ct. 2783 (rejecting the notion that the Second Amendment safeguards “M-16 rifles and the like”). Put simply, we have no power to extend Second Amendment protection to the weapons of war that the Heller decision explicitly excluded from such coverage. Nevertheless, we also find it prudent to rule that — even if the banned assault weapons and large-capacity magazines are somehow entitled to Second Amendment protection — the district court properly subjected the FSA to intermediate scrutiny and correctly upheld it as constitutional under that standard of review.

Here the court has intentionally conflated AR-15 with M-16s. M-16s can be regulated via the NFA because the NFA has not yet been challenged directly post Heller. In order to make the FSA constitutional the court had to treat “assault weapons” as NFA items.

They continue with a statement that because the en banc. fourth circuit court move their thumb back to intermediate scrutiny, even if they considered assault weapons and LCM’s protected arms, means-ends allows them to be banned.

The state’s argument:

In support of its motion for summary judgment, the State proffered extensive uncontroverted evidence demonstrating that the assault weapons outlawed by the FSA are exceptionally lethal weapons of war. A prime example of the State’s evidence is that the most popular of the prohibited assault weapons — the AR-15 — is simply the semiautomatic version of the M16 rifle used by our military and others around the world. Accord Staples v. United States, 511 U.S. 600, 603, 114 S.Ct. 1793, 128 L.Ed.2d 608 (1994) (observing that “[t]he AR-15 is the civilian version of the military’s M-16 rifle, and is, unless modified, a semiautomatic weapon”).

The good news is that in June of 2022 the Supreme Court of the US Granted certiorari to Bianchi v. Frosh, vacated the fourth circuit court’s ruling, and remanded the case back to the fourth circuit court. Since Bianchi v. Frosh was decided based on Kolbe v Hogan this means that Kolbe v. Hogan should no longer be considered good law.

We will have to wait to see what the fourth circuit rules regarding Bianchi v. Forsh