KOLBE VS. HOGAN: THE U.S. DISTRICT COURT OF MARYLAND IGNORES U.S. SUPREME COURT PRECEDENT, OPENLY AND BLATANTLY DEFYING HELLER.

PART FOUR

The Maryland District Court incorrectly and improperly interpreted Justice Scalia as saying: “the Supreme Court held in Heller I* that a heightened level of scrutiny applies to regulations found to burden the Second Amendment right, 554 U.S. at 628 n.27, but did not further articulate whether and when strict or intermediate scrutiny applies.” Kolbe vs. O’Malley, 42 F. Supp. 3d 768, 789 (U.S. Dist. Ct. Md. 2014), affirmed in part, vacated in part, and remanded to the District Court by the three Judge Panel in Kolbe vs. Hogan, 813 F.3d 160 (4th Cir. Md., 2016). It was not by accident that the high Court in Heller refrained from articulating when intermediate scrutiny or strict scrutiny, as a legal standard, applies to test the constitutionality of legislation impinging on the Second Amendment. The Heller Court deliberately refrained from doing so.The high Court intentionally refrained from articulating any standard of review—whether rational basis, intermediate scrutiny, strict scrutiny, some hybrid standard, or a completely new and novel standard of review, such as the one Justice Breyer devised for Heller, in his dissenting opinion—because Justice Scalia, who wrote the majority’s opinion, knew that any standard a lower court or the U.S. Supreme Court utilized to test the constitutionality of legislation, impinging upon and directly infringing the right of the people to keep and bear arms, would likely fail if a lower Court—antithetical to the very existence of the Second Amendment—wished to uphold an unconstitutional law. The decision and reasoning of the U.S. District Court of Maryland in Kolbe vs. O’Malley demonstrably bears out Justice Scalia’s concern.Justice Scalia knew full well a lower Court would foreordain the result it wanted, through any standard of review the high Court might articulate. Thus, a lower Court could cloak a wrongly decided case by simply pointing to the standard the high Court happens to tell a lower Court to use, and, in so “applying” that standard, uphold a facially unconstitutional law, finding the law to be perfectly valid and, hence, lawful, when in fact it isn’t.Justice Scalia apparently felt confident that, by refusing to articulate a standard of review for testing the constitutionality of a government action that directly impinges and infringes the core of the Second Amendment, a lower Court will draw the right conclusion and strike down such government action—even if a lower Court does so reluctantly because it happens to harbor animosity toward the Second Amendment. But, Justice Scalia did not, apparently, realize the lengths to which a lower Court would go to defend governmental actions directed to the core of the Second Amendment even if such Courts flirt with injudicious defiance of clear U.S. Supreme Court precedent.The District Court of Maryland extrapolated from a totally erroneous interpretation of Heller, relying on exposition from an earlier Fourth Circuit case that reflects law decidedly and decisively overridden by Heller. The District Court of Maryland said, “From the Court’s holding in Heller I, the Fourth Circuit has subsequently determined that whether strict or intermediate scrutiny applies requires the court to consider ‘the nature of the person’s Second Amendment interest, the extent to which those interests are burdened by government regulation, and the strength of the government’s justifications for the regulation.’” Kolbe vs. O’Malley, 42 F. Supp. 3d at 789, relying for support on United States v. Masciandaro, 638 F.3d 458, 470 (4th Cir. 2011).The District Court’s understanding of Heller is flat-out wrong. The District Court points for support, for its reasoning and for its decision, to parenthetical material, dicta, appearing in Heller. Dicta, though, does not constitute the salient ruling of the high Court—hence the reason that such material appears in a footnote and not in the body of the high Court’s opinion.In that footnote to the Heller Opinion, Justice Scalia was doing nothing more than responding to Justice Breyer’s comment—a comment that appeared in Justice Breyer’s dissenting opinion. Justice Scalia was simply agreeing with Breyer that rational basis—the lowest standard of review to test the constitutionality of government action—is never an appropriate standard when that government action directly and clearly and fatally impinges on and infringes an enumerated right, such as the Second Amendment. What Justice Scalia said in “fn27,” which the District Court refers to, and as we pointed out in Part Three of this series, and which bears repeating is this:“Justice Breyer correctly notes that this law, like almost all laws, would pass rational-basis scrutiny [citation omitted]. But rational-basis scrutiny is a mode of analysis we have used when evaluating laws under constitutional commands that are themselves prohibitions on irrational laws. [citation omitted]. In those cases, ‘rational basis’ is not just the standard of scrutiny, but the very substance of the constitutional guarantee. Obviously, the same test could not be used to evaluate the extent to which a legislature may regulate a specific, enumerated right, be it the freedom of speech, the guarantee against double jeopardy, the right to counsel, or the right to keep and bear arms. See United States v. Carolene Products Co., 304 U.S. 144, 152, n 4, 58 S. Ct. 778, 82 L. Ed. 1234 (1938) (‘There may be narrower scope for operation of the presumption of constitutionality [i.e., narrower than that provided by rational-basis review] when legislation appears on its face to be within a specific prohibition of the Constitution, such as those of the first ten amendments. . . .’ If all that was required to overcome the right to keep and bear arms was a rational basis, the Second Amendment would be redundant with the separate constitutional prohibitions on irrational laws, and would have no effect."From these remarks the U.S. District Court for the District of Maryland felt justified, nonetheless, to apply some standard of review—when the Heller majority did not warrant use of any standard of review to test the constitutionality of governmental action that impinges on and infringes the very core of the Second Amendment. Justice Scalia, writing for the majority in Heller, made abundantly clear that all standards of review are inadequate when the core of the Second Amendment is attacked.Justice Scalia therefore refused to be pinned down to elucidating a test to be used by the courts when analyzing whether a given law that operates to ban an entire category of weapons that the public commonly uses for self-defense might feasibly survive a constitutional challenge. Justice Scalia, writing for the majority, refused to be pinned down because he realized that, under any of the standard tests Court’s employ to test the constitutionality of a legislative act—specifically where a legislature attacks a core component of the Second Amendment—will often be found to be constitutional if the Court and an antigun government are of like mind.Responding to Justice Breyer’s criticism of the majority for not elucidating a standard of review, Justice Scalia said this:"Justice Breyer moves on to make a broad jurisprudential point: He criticizes us for declining to establish a level of scrutiny for evaluating Second Amendment restrictions. He proposes, explicitly at least, none of the traditionally expressed levels (strict scrutiny, intermediate scrutiny, rational basis), but rather a judge-empowering ‘interest-balancing inquiry’ that ‘asks whether the statute burdens a protected interest in a way or to an extent that is out of proportion to the statute’s salutary effects upon other important governmental interests.’ [citation omitted]. After an exhaustive discussion of the arguments for and against gun control, Justice Breyer arrives at his interest-balanced answer: Because handgun violence is a problem, because the law is limited to an urban area, and because there were somewhat similar restrictions in the founding period (a false proposition that we have already discussed), the interest-balancing inquiry results in the constitutionality of the handgun ban. QED. We know of no other enumerated constitutional right whose core protection has been subjected to a freestanding ‘interest-balancing’ approach. The very enumeration of the right takes out of the hands of government—even the Third Branch of Government—and the power to decide on a case-by-case basis whether the right is really worth insisting upon. A constitutional guarantee subject to future judges' assessments of its usefulness is no constitutional guarantee at all. Constitutional rights are enshrined with the scope they were understood to have when the people adopted them, whether or not future legislatures or (yes) even future judges think that scope too broad.”Curiously, Justice Breyer, in his dissenting opinion, makes Justice Scalia’s point for Scalia’s refusal to articulate a standard of review—even strict scrutiny. Justice Breyer says:“. . . adoption of a true strict-scrutiny standard for evaluating gun regulations would be impossible. That is because almost every gun-control regulation will seek to advance (as the one here does) a ‘primary concern of every government—a concern for the safety and indeed the lives of its citizens.’” United States v. Salerno, 481 U.S. 739, 755, 107 S. Ct. 2095, 95 L. Ed. 2d 697 (1987). The Court has deemed that interest, as well as "the Government's general interest in preventing crime," to be "compelling," see id., at 750, 754, 107 S. Ct. 2095, 95 L. Ed. 2d 697, and the Court has in a wide variety of constitutional contexts found such public-safety concerns sufficiently forceful to justify restrictions on individual liberties, see, e.g., Brandenburg v. Ohio, 395 U.S. 444, 447, 89 S. Ct. 1827, 23 L. Ed. 2d 430 (1969) (per curiam) (First Amendment  free speech rights); Sherbert v. Verner, 374 U.S. 398, 403, 83 S. Ct. 1790, 10 L. Ed. 2d 965 (1963) (First Amendment religious rights); Brigham City v. Stuart, 547 U.S. 398, 403-404, 126 S. Ct. 1943, 164 L. Ed. 2d 650 (2006) (Fourth Amendment protection of the home); New York v. Quarles, 467 U.S. 649, 655, 104 S. Ct. 2626, 81 L. Ed. 2d 550 (1984) (Fifth Amendment rights under Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966)); Salerno, supra, at 755, 107 S.  Ct. 2095, 95 L. Ed. 2d 697 (Eighth Amendment bail rights). Thus, any attempt in theory to apply strict scrutiny to gun regulations will in practice turn into an interest-balancing inquiry, with the interests protected by the Second Amendment on one side and the governmental public-safety concerns on the other, the only question being whether the regulation at issue impermissibly burdens the former in the course of advancing the latter. I would simply adopt such an interest-balancing inquiry explicitly.” And, in so doing, Justice Breyer made a glaring mistake. Justice Breyer was so convinced that a test of some sort must be used, he failed to realize that, in some instances, as in Heller, a governmental action that effectively neutralizes a fundamental right does not require application of some sort of Court devised test, as the governmental action is per se invalid. A governmental action must be struck down if it is directed to the core of a fundamental right. If a governmental action is directed to the core of a fundamental right, that means the governmental action is invalid on its face, i.e., facially, or per se, invalid. That is a salient, if tacit point of Heller. The point made is really nothing new. The U.S. Supreme Court has struck down facially unconstitutional laws, repeatedly, in the past, bypassing application of any test to ascertain constitutionality of a governmental action when the governmental action attacks the very core of the right protected by the Bill of Rights. For a general review of and good discussion of cases involving laws that the U.S. Supreme Court struck down on the ground of facial invalidity, see, e.g., two academic articles, written by an expert on the issue of facially unconstitutional laws, Richard H. Fallon, Jr., Professor of Law at Harvard university, "Fact and Fiction About Facial Challenges," 99 California Law Review 915 (August 2011); and, "As-Applied and Facial Challenges and Third Party Standing," Harvard Law Review (April 2000). There are a plethora of academic articles on this subject.Granted, Heller appears to be the first and only Second Amendment case, to date, where the U.S. Supreme Court has struck down a governmental action on the ground of facial invalidity—Justice Scalia finding application of any standard of review either to be redundant or possibly eliciting the wrong conclusion if applied--even if the words, "facial invalidity" do not appear expressly in Scalia's Heller opinion.Courts should seriously consider the reality and enormity of government transgression as government, at the federal, State, and local levels, callously enacts laws and regulations that attack the core of the Second Amendment, albeit doing so under the obvious guise of promoting public safety. Courts of competent jurisdiction should call out such patently unlawful government actions for what they are--scarcely covert attempts to destroy the Second Amendment to the U.S. Constitution. Laws and regulations, such as Maryland's Firearm Safety Act, should be found to be facially invalid as such laws and regulations are designed and implemented for no real purpose other than to prevent an American citizen from exercising his natural right to keep and bear arms under the Second Amendment. Courts should strike down such laws and regulations, unequivocally, peremptorily, totally, thereby sending a clear message to Congress, to the State Legislatures, and to local governments, that the Third Branch of Government, the Judiciary will not sit idly by as government seeks to legislate away the American citizen's fundamental right to keep and bear arms as codified under the Second Amendment. We continue with our analysis of Kolbe in Part Five of this series._________________________*Occasionally, Courts will use a Roman numeral as an informal designation for a case, if a plaintiff in an older case files a new action, raising a similar issue in the new case, against the same defendant. In fact, the principal plaintiff, in the seminal Heller case—a case subsequently and often referred to, as the U.S. District Court of Maryland refers to it, as Heller I—filed a new action against the District of Columbia, challenging the District of Columbia’s registration requirement on handguns and long guns and also challenging the District of Columbia’s ban on so-called “assault weapons” and so-called large capacity magazines—the same sort of challenge that Plaintiffs make to the Maryland Firearm Safety Act, in the Kolbe case.The citation of the recent Federal Circuit Heller case is, Heller vs. District of Columbia, 670 F.3d 1244 (Fed. Cir. 2011). This more recent case is often referred to, informally, as Heller II. We will be taking a close look at this case, as we continue with this important series of articles.Note: it isn’t coincidence that antigun Courts all use the same faulty reasoning when ruling that facially unconstitutional laws, infringing the Second Amendment, nonetheless pass constitutional muster. These Federal Circuit Courts of Appeal—notably, the Second, Fourth, Seventh, and Ninth—dealing with the same or similar fact patterns, are, we believe, clearly working in concert, having created an unholy alliance to uphold laws unconstitutionally infringing the core of the Second Amendment. These Courts, an important component of the  Judiciary—that should rise above the fray--above political and social dissension, exercising independent legal judgment—become, all too often, a lackey of political forces, doing nothing, really, to disguise that fact and doing nothing to disguise the fact, too, that they will ignore U.S. Supreme Court precedent when they wish to impose their own social and political will on society. What makes the actions of these Courts particularly reprehensible is that their actions always have the pious imprimatur of the law—falsely suggesting that their conduct is forever above the fray of politics when it really isn't as they are merely masking, in their judicial orders, what it is they are really doing--what they have done all along--making political and legislative pronouncements, becoming a servant of the Press and of the First Branch of Government--the Legislature--rather than operating as a co-equal Branch of Government as the Founders of our Republic intended for them to operate--namely as the grand interpreter of the law that the Constitution has given them the singular power and authority to oversee._________________________Copyright © 2017 Roger J Katz (Towne Criour), Stephen L. D’Andrilli (Publius) All Rights Reserved.  

KOLBE VS. HOGAN: WILL THE CORRECT STANDARD OF REVIEW IN A SECOND AMENDMENT CASE PLEASE STAND UP!

PART THREE

THE U.S. DISTRICT COURT OF MARYLAND EMPLOYED THE WRONG STANDARD OF REVIEW IN FINDING THAT MARYLAND’S DRACONIAN FIREARM SAFETY ACT IS LAWFUL.

The U.S. Supreme Court, in the case, District of Columbia vs. Heller, 554 U.S. 570, 128 S. Ct. 2783 (2008), wrestled with the legal test to be applied when determining if a law, impacting the Second Amendment, would pass Constitutional muster. The U.S. Supreme Court has, through time, in its great body of case law, developed three salient standards of review, or tests, one of the three which a court of competent jurisdiction must apply when testing the constitutionality of government action. But which test a court must apply to test the constitutionality of a particular government action depends on the nature and importance of the right protected, the extent to which a government--local, State, or federal--infringes that right, and the class of persons impacted by that governmental action.Apart from the high Court's three seminal holdings on the Second Amendment, in Heller, the Heller case is notable for explicating problems associated with all of those standard tests previously employed—and with problems associated with a new one that the dissenting Justice, Stephen Breyer, would like to have applied—when government enacts a law directly impinging on and infringing the very core of the Second Amendment. The late Justice, Antonin Scalia, writing for the majority in Heller, discussed the problems of each  of these standard tests, concluding that none of the traditional tests, including the balancing of interests test proposed by Justice Breyer, are adequate to protect the core of the Second Amendment, when a government deliberately, unabashedly attacks the very core of it.Justice Scalia began by pointing out that the weakest standard of judicial scrutiny, “rational basis,” should never be used to test the constitutionality of legislation, that, on its face, is directed against the exercise of a fundamental right, especially when legislation negatively impacts the Second Amendment. “Rational basis” is an unacceptable standard to be used because, if it is used, a governmental entity--be that a local, State, or Federal governmental entity—need only demonstrate that the governmental legislation is rationally related to a legitimate government purpose. Where the Second Amendment is impacted, this generally means that a governmental entity need only demonstrate that the governmental action is rationally related to a legitimate goal such as promoting public safety in order for that governmental entity to successfully defend against a challenge to the constitutionality of the governmental action.Rational basis, as a standard of review, to test the constitutionality of governmental action, where, as here, the Second Amendment is negatively impacted, is categorically inappropriate. Even the left-wing Justice, Stephen Breyer, agreed. As Justice Scalia stated, in Heller, “Justice Breyer correctly notes that this law [Maryland’s Firearm Safety Act] like almost all laws, would pass rational-basis scrutiny. [citation omitted]. But rational-basis scrutiny is a mode of analysis we have used when evaluating laws under constitutional commands that are themselves prohibitions on irrational laws. [citation omitted]. In those cases, ‘rational basis’ is not just the standard of scrutiny, but the very substance of the constitutional guarantee.” Obviously, the same test could not be used to evaluate the extent to which a legislature may regulate a specific, enumerated right, be it the freedom of speech, the guarantee against double jeopardy, the right to counsel, or the right to keep and bear arms [citation omitted].” District of Columbia vs. Heller, 554 U.S. 570, 628, fn.27.Justice Scalia points out clearly, categorically the inappropriateness of rational basis in testing the constitutionality of legislation negatively impacting the Second Amendment. For a Court using that lax standard could easily find that laws that unconstitutionally impinge on and infringe fundamental rights would, nonetheless, pass judicial scrutiny every time unless the governmental action is determined, by a court of competent jurisdiction, to be arbitrary and capricious—a notoriously difficult burden for a challenger to overcome, and something which a Court very rarely finds in governmental actions.On Second Amendment matters, where public safety is always asserted as the, or certainly a, salient reason for restrictive gun legislation, it is highly unlikely that a Court of competent jurisdiction would ever find any restrictive gun legislation—even an absolute gun restriction—to be arbitrary and capricious when public safety is asserted as at least one of the primary bases for the legislation. Of course, drafters of restrictive gun legislation, and the mainstream media that always trumpets such legislation, invariably assert “public safety” as the salient, predicate basis for enacting such legislation in the first place. Courts rarely, if ever, look beyond and behind the assertion to determine whether “public safety” is truly the basis for restrictive gun legislation and not simply a makeweight employed for the specific purpose of defeating any challenge made to it.Thus, a challenger—who, under rational basis, always bears the burden of proof, at the get-go, to demonstrate that a particular government action is unconstitutional—would have a very difficult time, demonstrating, to the satisfaction of a court of review, that such restrictive legislation is, under law, unconstitutional. This means, of course, that, under rational basis, any infringement of an American's fundamental right to keep and bear arms always passes constitutional muster. This isn’t an academic consideration. For New York Courts routinely use rational basis as a standard of review and have found, not unsurprisingly, the New York Safe Act—one of the most restrictive and notorious gun enactments in the Nation, that clearly, negatively impacts the core of the Second Amendment—to pass constitutional muster.But, would application of the highest standard of review, strict scrutiny, defeat restrictive gun legislation that hides behind the cloak of promoting public safety? Justice Scalia didn’t think so, notwithstanding the import of such heightened scrutiny.

WHAT DOES JUDICIAL REVIEW UNDER STRICT SCRUTINY MEAN?

What does review of legislation, under “strict scrutiny,” entail? Under strict scrutiny, a governmental body must show, one, that legislation impinging upon and infringing upon a constitutional right, must serve a “compelling governmental interest” and, two, that the law that ostensibly serves a compelling governmental interest, is, in fact, the least restrictive means government has available to it for achieving its stated goal.Such a test, properly used, would, one might reasonably think, preclude implementation of--or if implemented, would require a Court to strike down--devious  antigun legislation, designed primarily to curtail the legitimate right of gun owners to own and possess firearms by unconstitutionally, and, therefore, unlawfully, divesting them of that right. For, the mere and obviously false and ridiculous assertion by government that restrictive gun legislation is not designed to divest gun owners of their guns--as government doesn’t really wish to deny average law-abiding, rational Americans their right to own and possess firearms--but is designed merely to promote public safety--will not, by itself, satisfy strict scrutiny.The mere trivial claim of government--adequate to satisfy rational basis--is not enough to satisfy strict scrutiny. Such legislation would, it is reasoned, fail such severe judicial scrutiny, time and time again. That, of course, is what application of strict scrutiny is designed to do. But that is not always what happens--especially where legislation impinging on and infringing the right of the people to keep and bear arms exists. Justice Scalia knew this. He wasn’t fooled by the promise that strict scrutiny sought to engender. Justice Scalia saw the fallibility in the test of strict scrutiny—in any test or standard, really, that a Court may be called upon to employ when testing the constitutionality of restrictive gun legislation—even the test of strict scrutiny as applied to test the constitutionality of governmental enactments.Justice Scalia reasoned, in the Heller opinion, that, if the Courts use the most stringent standard, strict scrutiny, then government action, negatively impacting the right of the people to keep and bear arms—a fundamental right as codified under the Second Amendment—could still feasibly pass Constitutional muster.He said in Heller, “Under any of the standards of scrutiny that we have applied to enumerated constitutional rights, banning from the home ‘the most preferred firearm in the nation to keep and use for protection of one’s home and family,’” [citation omitted] would fail constitutional muster. District of Columbia vs. Heller, 554 U.S. 570, 628, fn.27.Academicians concur. One legal scholar writes, “Strict scrutiny must be worthy of its name; ‘strict’ should be truly ‘strict,’ not merely ‘significant.’ It should take more than a good college try to satisfy strict scrutiny. Otherwise aspects of liberty encapsulated in fundamental rights will lack the vigor the Supreme Law of the Land should command in a free society. That is why strict scrutiny is ‘the most demanding test known to constitutional law.’” “Making Second Amendment Law with First Amendment Rules: The Five-Tier Free Speech Framework and Public Forum Doctrine in Second Amendment Jurisprudence, Kenneth A. Klukowski, University of Notre Dame Law School, J.D., 93 Nebraska Law Review 429, 444 (2014). The author says, unabashedly, that the courts have “emasculated strict scrutiny.” Certainly, Justice Scalia was aware of this “emasculation” of the strict scrutiny test. It was for this reason that he was skeptical of asserting a standard of review for Second Amendment cases at all. Justice Scalia knew that many courts, federal and State, frown on the very existence of the Second Amendment. Given the chance, judges that despise the Second Amendment would find a restrictive gun law constitutional using any articulated standard of review. Justice Scalia also obviously knew that, to enhance the effectiveness of Heller, it was necessary to make clear to courts of inquiry that outright bans on entire categories of guns that the public has traditionally and commonly used for self-defense are per se unconstitutional. “There are situations in which even strict scrutiny proves insufficient to vindicate constitutional rights. Those are (1) categorical bans on firearms, and (2) firearm confiscations. . . . Per se rulings will . . . take off the table certain questions wherein courts are giving short shrift to the Second Amendment. The Second and Fourth Circuits have held that near-absolute bans on carrying firearms outside the home are constitutional, applying a faux intermediate scrutiny that more resembles rational-basis review.” “Making Second Amendment Law with First Amendment Rules: The Five-Tier Free Speech Framework and Public Forum Doctrine in Second Amendment Jurisprudence, 93 Nebraska Law Review at 446-447.

WHAT STANDARD OF REVIEW DID THE U.S. DISTRICT COURT OF MARYLAND USE IN DECIDING KOLBE?

But, what did the U.S. District Court of the District of Maryland, in Kolbe vs. O’Malley, 42 F. Supp. 3d 768; 2014 U.S. Dist. LEXIS 110976 (D. Md. 2014), do? The lower Court didn’t apply strict scrutiny, nor did it apply rational basis. The U.S. District Court applied another standard of review—intermediate scrutiny, and, having done, the Court, held, not surprisingly, that facially unconstitutional legislation nonetheless passes judicial inquiry into the constitutionality of that legislation--namely, that the Maryland Firearm Safety Act is lawful and consistent with the Second Amendment right of the people to keep and bear arms. Under “intermediate scrutiny,” a standard of review created by the U.S. Supreme Court, that ostensibly falls between the very lax “rational basis” standard and the seemingly strong “strict scrutiny” standard, a Court, using the intermediate scrutiny test, commences by asking whether legislation is rationally related to a legitimate government goal. That of course is the rational basis test; and, under that test, if the government action meets that liberal test, as it almost invariably does, the Court must need go no further in determining the constitutionality of the government action. But, rational basis is only the first step when a Court employs intermediate scrutiny. The Court then proceeds to the next step, and asks whether the legislation is substantially related to the governmental interest in achieving that goal. How did intermediate scrutiny come to pass? Originally, intermediate scrutiny was devised by the U.S. Supreme Court for use in gender discrimination cases. Intermediate scrutiny, though, has increasingly been used by Courts, in lieu of the heightened strict scrutiny, in cases where fundamental rights are at stake—most notably under the First and Second Amendments.Antigun Courts that are generally restrained from using rational basis—apart from the Courts of New York that have systematically gotten away with use of this altogether inapt standard of review—the standard of review of choice of these antigun Courts, tasked with ruling on the constitutionality of a government action that negatively impacts the Second Amendment, is intermediate scrutiny.But there is a problem with this standard of review. The problem with “intermediate scrutiny” is that it is difficult to get a handle on it. What does “substantially related” mean? It means different things to different Courts.Understand, if, as Justice Scalia pointed out in Heller, strict scrutiny is not an appropriate test to be used in testing the constitutionality of government action that infringes the core of the Second Amendment, intermediate scrutiny, as with the lax test, rational basis, is clearly not the appropriate test for a Court to use either. The U.S. District Court of Maryland used the test of intermediate scrutiny, anyway.Maryland’s Firearm Safety Act, operating as a total ban on an entire category of firearms that the law-abiding citizenry traditionally and commonly uses for self-defense—namely, those firearms the State arbitrarily defines as “copycat weapons” or “assault weapons” or “military style weapons” and ammunition magazines classified as “LCM” (Large Capacity Magazines)” commonly used for those weapons—passes constitutional muster on a standard of review the U.S. District Court for the District of Maryland decided to use—a standard of review to test the constitutionality of the Maryland Firearm Safety Act that the Heller majority discussed—along with rational basis and strict scrutiny—and summarily rejected.Why did the U.S. District Court of Maryland use a standard of review in clear contravention to Heller in testing the constitutionality of the Maryland Firearm Safety Act—that so blatantly infringes the right of the people to keep and bear arms? What was the U.S. District Court of Maryland thinking? Did the U.S. District Court of Maryland really believe that it could so easily snub the U.S. Supreme Court? What was the reasoning of the U.S. District Court? We deal with these questions in Part Four of this multipart series on Kolbe.__________________________________Copyright © 2017 Roger J Katz (Towne Criour), Stephen L. D’Andrilli (Publius) All Rights Reserved.

KOLBE VERSUS HOGAN: A CASE AT ODDS WITH HELLER

PART TWO

FACTS AND HISTORY OF THE CASE

The Plaintiffs in Kolbe, include two American citizens and residents of the State of Maryland, a gun club, a gun dealer, and several gun associations. The Plaintiffs filed an action in Maryland District Court, in 2013, against several Maryland State Officials: Martin J. O’Malley, in his official capacity as Governor of the State of Maryland, Douglas F. Gansler, in his official capacity as Attorney General of the State of Maryland, Marcus L. Brown, Col., in his official capacity as Secretary of the Department of State Police and Superintendent of the Maryland State Police, Maryland State Police, Defendants.The citation for the original case, filed in the U.S. District Court for the District of Maryland, with a slightly different case name is: Kolbe vs. O’Malley, 42 F. Supp. 3d 768; 2014 U.S. Dist. LEXIS 110976 (D. Md. 2014). On appeal to the U.S. Circuit Court of Appeals for the Fourth Circuit, the caption of the case was changed to reflect the new Governor, as party Defendant, Larry Hogan, who superseded Governor Martin O’Malley.In their Complaint, the Plaintiffs alleged that Maryland’s restrictive gun legislation, titled “The Firearm Safety Act of 2013,” is unconstitutional. Plaintiffs alleged specifically that the Maryland Firearm Safety Act infringes the Second Amendment to the U.S. Constitution, the Due Process Clause of the Fourteenth Amendment, and that the Act should be declared void for vagueness.The Firearm Safety Act is codified, in substantial part, in the Maryland Penal Code, Crim. Law (“CR”) §§ 4-301(d), 4-303(a)(2), and § 4-305(b). What does The Firearm Safety Act of 2013 say? The Act says that, “after October 1, 2013, no person may possess, sell, offer to sell, transfer, purchase, or receive ‘assault pistols,’ ‘assault long guns,’ and ‘copycat  weapons.’ These banned weapons are, collectively, defined as ‘assault weapons’ under the Act. In addition, the Act states that a person “may not manufacture, sell, offer for sale, purchase, receive, or transfer a detachable magazine that has a capacity of more than 10 rounds of ammunition for a firearm.” The focus of Plaintiffs’ Complaint was on challenging the constitutionality of Md. Criminal Law Code § 4-403, titled, Assault Weapons—Prohibited.  § 4-403(a) says: “Except as provided in subsection (b) of this section, a person may not transport an assault weapon into the State or possess, sell, offer to sell, transfer, purchase, or receive an assault weapon.”What constitutes an ‘assault weapon’ under Maryland law? An ‘assault weapon’ is no more than a legal fiction. Md. Criminal Law Code § 4-401, titled, simply, Assault Weapons, defines ‘assault weapon’ as an ‘assault long gun’ or ‘assault pistol’ or a ‘copycat weapon.’  Those three expressions are, in turn, defined as follows:“‘Assault long gun’ means any assault weapon listed under § 5-101(r)(2) of the Public Safety Article.‘Assault pistol’ means any of the following firearms or a copy regardless of the producer or manufacturer:AA Arms AP-9 semiautomatic pistol;Bushmaster semiautomatic pistol;Claridge HI-TEC semiautomatic pistol;D Max Industries semiautomatic pistol;Encom MK-IV, MP-9, or MP-45 semiautomatic pistol;Heckler and Koch semiautomatic SP-89 pistol;Holmes MP-83 semiautomatic pistol;Ingram MAC 10/11 semiautomatic pistol and variations including the Partisan Avenger and the SWD Cobray;Intratec TEC-9/DC-9 semiautomatic pistol in any centerfire variation;P.A.W.S. type semiautomatic pistol;Skorpion semiautomatic pistol;Spectre double action semiautomatic pistol (Sile, F.I.E., Mitchell);UZI semiautomatic pistol;Weaver Arms semiautomatic Nighthawk pistol; orWilkinson semiautomatic ‘Linda’ pistol. ‘Assault weapon’ means:an assault long gun;an assault pistol; ora copycat weapon. ‘Copycat weapon’ means:a semiautomatic centerfire rifle that can accept a detachable magazine and has any two of the following:a folding stock;a grenade launcher or flare launcher; ora flash suppressor;a semiautomatic centerfire rifle that has a fixed magazine with the capacity to accept more than 10 rounds;a semiautomatic centerfire rifle that has an overall length of less than 29 inches;a semiautomatic pistol with a fixed magazine that can accept more than 10 rounds;a semiautomatic shotgun that has a folding stock; ora shotgun with a revolving cylinder.‘Copycat weapon’ does not include an assault long gun or an assault pistol.”Penalties for violation of the law are harsh. A person who violates the Act “is guilty of a misdemeanor and on conviction is subject to imprisonment not exceeding 3 years or a fine not exceeding $5,000 or both.” Does the Act apply evenly to everyone? No. The law exempts retired law enforcement officers.

THE LOWER COURT’S DECISION

In ruling for the Defendants, upholding the constitutionality of a highly restrictive Firearm Safety Act, amounting essentially to a gun ban on an entire category of firearms, the lower Court said this: “the Firearm Safety Act of 2013, which represents the considered judgment of this State’s legislature and its governor, seeks to address a serious risk of harm to law enforcement officers and the public from the greater power to injure and kill presented by assault weapons and large capacity magazines. The Act substantially serves the government's interest in protecting public safety, and it does so without significantly burdening what the Supreme Court has now explained is the core Second Amendment right of ‘law-abiding, responsible citizens to use arms in defense of hearth and home.’”The ruling, far from clarifying the purported constitutionality of Maryland’s restrictive Act, begs the very question at issue: does the Act, banning citizen ownership of an entire category of firearms, violate the Second Amendment to the U.S. Constitution precisely because the Act precludes to law-abiding citizens the right to own an entire category of firearms they have owned for decades; and does the Act violate, as well, the Equal Protection Clause of the Fourteenth Amendment insofar as it extends to retired law enforcement officers a right to own a large category of firearms the Act denies to everyone else?

THE DECISION OF THE LOWER, U.S. DISTRICT OF MARYLAND, IS NOT CONSISTENT WITH THE HOLDING, REASONING, OR METHODOLOGY OF HELLER

Whenever a Second Amendment challenge is raised, courts of competent jurisdiction must consider the impact of and import of the U.S. Supreme Court’s decision in District of Columbia vs. Heller, 554 U.S. 570, 128 S. Ct. 2783 (2008), made applicable to the States in McDonald vs. City of Chicago, 561 U.S. 742, 130 S. Ct. 3020 (2010). To most people—those who have at least an inkling as to the import of Heller—the Heller case stands for the proposition that “The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home.” Upon acknowledging that holding as they must, Courts, such as the U.S. District Court for the District of Maryland, that profess an open dislike for the Heller case generally and for the Second Amendment particularly, proceed on their merry way to misread Heller. They do so to uphold draconian gun laws that are clearly inconsistent with Heller.Is Heller so difficult to understand? No! Even through a cursory reading of Heller, one can see that Justice Scalia, who wrote for the majority, provided specific, clearly articulated guidance for Courts to follow when a Second Amendment challenge to restrictive gun legislation comes before a Court.The U.S. Supreme Court in Heller, laid out, succinctly, the Court’s findings in its Syllabus. The Court Syllabus precedes discussion of the facts and issues of a case, and law applicable to a case. The Syllabus is not part of the main opinion but provides, for judges and attorneys, an abbreviated roadmap for getting a handle on a case.From the Syllabus in Heller, we see that the majority in Heller sets forth three distinct holdings. Apart from the first holding—namely that the right of the people to keep and bear arms is a right that accrues to the individual and, so, unconnected to that individual’s service in a militia—there are two other holdings that must be considered, along with the reasoning of the majority in Heller.The failure of the lower U.S. District Court and the failure of the higher Fourth Circuit Court of Appeals to adhere to the holdings of Heller and to apply the reasoning and methodology of the Heller Court, led to wrong decisions—decisions grounded on poor legal reasoning.Apart from holding that the right of the people to keep and bear arms is an individual right, the U.S. Supreme Court in Heller held that: “The District’s total ban on handgun possession in the home amounts to a prohibition on an entire class of ‘arms’ that Americans overwhelmingly choose for the lawful purpose of self-defense. Under any of the standards of scrutiny the Court has applied to enumerated constitutional rights, this prohibition—in the place where the importance of the lawful defense of self, family, and property is most acute—would fail constitutional muster.”It is precisely on the issue as to whether a complete ban on “an entire class of ‘ arms’ that Americans overwhelmingly choose for the lawful purpose of self-defense,”—weapons that Maryland and several other jurisdictions define as ‘assault weapons’— does or does not amount to an unconstitutional infringement of the American citizen’s right to keep and bear arms, that the U.S. District Court for the District of Maryland and the U.S. Court of Appeals for the Fourth Circuit should have focused their inquiry.Instead the lower U.S. District Court and the en banc Fourth Circuit meander into political discussions of whether this or that weapon that a citizen commonly owns constitutes a weapon of war and finding that this is so, deliver their rulings, namely, that the Maryland Firearm Safety Act, banning a very large category of weapons that the public commonly uses for self-defense, does not infringe the Second Amendment in an unconstitutionally impermissible way.Moreover, the lower District Court and the Fourth Circuit’s en banc majority admitted that the weapons the State of Maryland seeks to ban are not really weapons of war at all but are merely like military weapons—weapons the State refers to as “military-style weapons,” namely, “assault weapons”—weapons, nonetheless, similar enough to actual military weapons, according to these Court opinions, so as to be construed as military weapons and therefore not within the scope of the Second Amendment. But, assuming, for purpose of argument, that so-called “military-style weapons” or “copycat weapons” or “assault weapons” were true military weapons that the military does use—which, in fact, the military doesn’t—still, that doesn’t ipso facto mean such weapons do not deserve constitutional protection.After all, the Second Amendment, as written, and as intended by the founders of our free Republic, sought specifically to place military weapons in the hands of the citizenry, that citizens may protect themselves and the States from foreign aggression—threats outside the United States—and from a tyrannical federal government—threats to our individual liberty inside the United States. Thus, even if the Court in Heller didn’t rule directly on whether  American citizens may lawfully keep and bear true military arms for self-defense, this does not mean lower Courts may willy-nilly rule they can’t. The high Court, in Heller, left that issue open as the issue wasn't directly before the Court; but, in raising the issue at all, in dicta, the high Court was at least laying the foundation for considering the constitutionality of whether American citizens, in their individual capacity, unconnected with service in a militia, may keep and bear military arms. Yet, in all too many Court opinions today, antigun judges are quick to pass judgment on matters not before it--assuming, as if the matter were self-evident that the public is not permitted, under the Second Amendment, under any circumstances, to keep and bear military arms and, from that premise  which they take to be axiomatic--holding that the Second Amendment does not protect a right to keep and bear arms that, in a Court's judgment, are like military arms, even if they aren’t actually military arms and, notwithstanding that such weapons that are like military arms are those that are commonly used by American citizens for self-defense--a salient test for whether such weapons are protected under the Second Amendment at all.Again, keep in mind and burn into your memory: What the Heller Court did point out is that weapons that the public commonly uses for self-defense are weapons that do fall within the scope and protection of the Second Amendment.Now, such weapons that the Maryland Legislature, and several other State Legislatures, define as prohibited ‘assault weapons’ are those that the public commonly uses for self-defense. And, if so, such so-called “assault weapons” are a category of weapons, like handguns, that no Legislature may lawfully ban. To do so constitutes an impermissible infringement of an American citizen’s right to keep and bear arms under the Second Amendment, and constitutes an action by State government that is at loggerheads with the Heller decision.We continue with our analysis of Kolbe in Part Three of this series.______________________________________Copyright © 2017 Roger J Katz (Towne Criour), Stephen L. D’Andrilli (Publius) All Rights Reserved.