WHERE DOES THE MOST SERIOUS THREAT TO THE PRESERVATION OF THE FUNDAMENTAL RIGHTS AND LIBERTIES OF AMERICANS REST? FROM CONGRESS? FROM THE PRESS? FROM THE PRESIDENT? FROM ALL THREE TAKEN TOGETHER? THE ANSWER MAY SURPRISE YOU!

KOLBE VS. HOGAN:

INTERIM REMARKS

The Arbalest Quarrel has been working steadily on a systematic and comprehensive analysis of the Kolbe case. We are taking a short timeout with this segment, subtitled, “Interim Remarks,” to place the substantial time we are devoting to Kolbe in proper perspective. We feel our analysis has singular importance now with the Senate Judiciary Hearings on the Gorsuch confirmation that took place these past few days, and which have concluded. Senate Democrats are now filibustering, to prevent a vote on the confirmation of Judge Gorsuch as Associate Justice on the U.S. Supreme Court.The Arbalest Quarrel will continue its comprehensive, analytical exposition of the Kolbe case, considering its negative impact on the Second Amendment and considering, as well, the failure of the Fourth Circuit to take proper note of and abide by the rulings and reasoning of the high Court in the seminal Heller case. The high Court provided clear guidance to the lower Courts for the proper handling of Second Amendment cases where government action attacks the core of the Second Amendment.What is unfortunately abundantly clear now is that lower federal Courts will, at times, ignore rulings and reasoning and guidance of the U.S. Supreme Court if those lower federal Courts do not agree with the methodology, the rulings, the reasoning, and the jurisprudential underpinnings of the law as reflected in specific cases. So it is that we see some United States Circuits ignoring the precepts of Heller. But, regardless of a jurist’s political and social philosophy, precedent must not be ignored. Precedent must never be ignored. All too often as we see, though, judicial precedent is ignored, and it is, not infrequently, ignored in the most important cases: those cases negatively impacting our most sacred rights and liberties.If anything came out of the Neil Gorsuch confirmation hearings —where Judge Gorsuch had to suffer through days of torturous questioning and insufferable pontificating of Senate Democrats sitting on the Judiciary Committee—the public has come to see that Judge Gorsuch believes fervently in the importance of legal precedent as the cornerstone of our system of laws. This is necessary if our system of laws is not to be reduced to a set of discordant, inconsistent body of law, providing no guidance on which Courts may reasonably rely.The public has also seen that Judge Gorsuch gives credence to the law enacted by Congress, as written. Judge Gorsuch does not allow personal feeling to sway his rulings. That seems to bother some members of the Senate Judiciary Committee. It should, though, give the public hope. For, the public can rest assured that Judge Gorsuch, sitting on the high Court as an Associate Justice, will demonstrate proper restraint—applying the law to the facts as that law exists, and not as he may, perhaps, rather like the law to be.What the law ought to be is subject matter for legal and political philosophical musings set down in essays. When a judge opines on a case before that judge, the jurist is not to render judgment on what the law ought to be but must predicate his or her rulings on what the state of the law is, and elucidate findings of fact and conclusions of law on that basis and on that basis alone. Frankly, all too often we do not see this. The worst and most dangerous example of improper legal judgment is judgment reflected in personal feeling peppered, if only tacitly, but unmistakably, in legal opinions—personal feeling overriding judicial restraint in matters directly impacting the Bill of Rights, not least of which, we see on the continued assault against the clear meaning and purpose of the Second Amendment.The rabid assault on the sanctity of the Second Amendment to the U.S. Constitution continues unabated notwithstanding the clear reasoning of and holdings in the Heller case. But, where do the greatest and gravest threats rest?Contrary to popular opinion on the matter, the greatest threat to our Bill of Rights, generally, and the gravest danger to our Second Amendment, particularly, rests less upon the assertive, pretentious, sanctimonious, noxious rhetorical flourishes and rancor of some elected officials who disdainfully, arrogantly voice their antipathy toward the Second Amendment—even if that rancor is masked through the obligatory assertion, “but of course I support the Second Amendment,” as if, through the addition of that assertion to the official’s polemic, the elected official may effectively hide his or her clear distaste toward the very idea that the average, law-abiding, rational, American citizen—not working as a policeman, or as a soldier, or as a licensed bodyguard, or as a government or private security officer, or in some unknown, secretive governmental capacity, but merely, solely as a civilian—should actually ever be armed with—horror of horrors—a firearm.And, contrary to popular opinion on the matter, the greatest threat to our Bill of Rights, generally, and the gravest danger to our Second Amendment, particularly, rests less upon the loud, vociferous, discordant voice of writers, editors, and owners of mainstream media whose antipathy toward the right of the people to keep and bear arms is well-known by the public, and is at once both longstanding and supremely malevolent.Rather, the greatest threat to our Bill of Rights, generally, and the gravest danger to our Second Amendment, particularly, rests more on the actions of activist Jurists of the federal District and Circuit Courts whose arcane opinions, seemingly well-learned and well-reasoned, merely obscure an intent to defeat the Second Amendment despite clear guidance from the U.S. Supreme Court.The threat posed by an activist Judiciary to the preservation of our basic liberties, as envisioned by the founders of our Free Republic is very real, not to be reasonably denied. And that threat posed to our Second Amendment right of the people to keep and bear arms is ultimately greater than that posed by either a recalcitrant Congress or a derelict Press.The danger posed by an activist Judiciary is greater and graver to our sacred rights and liberties because the Judiciary is the final arbiter of what our law means and, therefore, how the law impacts our lives.As our Constitution sets forth, Congress makes the law we live by. The Executive enforces the law that Congress enacts. But, as the grand interpreter of the law—what the law means and whether the law is consistent with the U.S. Constitution—whether a law shall operate at all, and, if so, the effect it has on our lives—it is for the Judiciary to say. It is not for Congress to say; and it is not for the U.S. President to say; and it is certainly, not for the Press to tell the American people what the law of the Land is.No! The Judiciary, alone, is the final arbiter of what the law is. Some may think the Judiciary wields less power than the two other Branches of Government. After all, the Judiciary does not have the power of the purse, which, along with the unequivocal and singular power to make law, exists in Congress alone. The Judiciary does not wield power over the military, or over the federal police agencies, or over the vast intelligence apparatuses, all of which fall within the direct purview of the Executive. But, as the final arbiter of our law—what the law means and how the law is to be applied—assuming we remain a Nation ruled by law, truly ruled by law, and not by men—no American should underestimate the power the Judiciary wields over our lives.Even the most uninformed citizens among us knows full well the power of the Judiciary in the matter of immigration. That has been on full display. That power can and, most recently has tied the hands of the U.S. President, as Commander in Chief of our Nation, taxed with the singular duty to protect the People of our great Nation from all threats both foreign and domestic.President Donald Trump, promising to do his best to defend this Nation against imminent and serious threat posed by Islamic terrorists —clearly among his most important duties as U.S. President—has been constrained and frustrated in that effort due to the machinations of the U.S. Court of Appeals for the Ninth Circuit and thereafter by the U.S. District Court of Hawaii—Courts that have, through their actions, placed the welfare of this Nation and the physical safety of its citizens at considerable risk as those Courts, through their opinions, demonstrate that the wishes of non-citizens who seek to emigrate to America from failed States are to be given more consideration than are the health and well-being of this Nation and the physical safety of American citizens. And, it doesn’t stop there, with immigration.Activist U.S. District Court and U.S. Circuit Court of Appeals judges express their disdain of the Second Amendment and their continued defiance of the U.S. Supreme Court through decisions that rein in the right of the people to keep and bear arms. They denigrate the import and purport of our Second Amendment through manipulation of legal doctrine.If our pronouncement be undiplomatic, untactful toward the Judiciary, so be it. This is not a time for niceties. For the decisions of the Judiciary—the words expressed in opinions—are proof of political activism that strike at the heart of the health, welfare, and safety of our Nation and at the import and purport of our Bill of Rights.No less has the Fourth Circuit, in our estimate, manipulated legal doctrine, in denigration of U.S. Supreme Court precedent. Obscuring opinion in arcane legalese does little to disguise the fact that legal opinions coming out of this Circuit in the recent Kolbe case are antithetical to and involve a misunderstanding—whether consciously deliberate or incautiously but honestly mistaken—of the rulings and reasoning of the Heller Court.The Fourth Circuit relies for support, in part, on similar rulings of its sister Courts, most notably, those of the Second, Third, Seventh, and Ninth Circuits. By relying for support on opinions of their sister Courts, the Fourth Circuit aims, it seems to us, to deflect honest criticism away from itself, thereby suggesting that similar rulings of these other Courts that belie the rulings, reasoning, and clear guidance of the majority opinion, penned by Justice Scalia, in Heller, do somehow demonstrate that the Fourth Circuit does give due consideration to the holdings and reasoning of Heller, rather than contradicting the holdings and reasoning of that seminal Second Amendment case. But that is not the case at all.We firmly believe—as we have explained and will elucidate yet further—the Fourth Circuit Court of Appeals, en banc, having taken its cue from the U.S. District Court of Maryland and from the opinions of various sister Courts, strained to find a loophole in the Heller case to justify finding Maryland’s Firearm Safety Act to be legal. There isn’t any. So, the Fourth Circuit created one out of whole cloth.The gravest error of the Courts of the Fourth Circuit consists in the application of a standard of review that the Heller Court specifically rejected. Proceeding from an improper footing, an erroneous decision—but one the Fourth Circuit obviously wanted—could not but follow from the application of the wrong standard.Happy the Fourth Circuit would be, as would other United States Circuit Courts that elicit similar sympathies, if Heller were simply overturned. Were Judge Merrick Garland to have sat on the high Court, that pipedream for the antigun movement would come to pass. There is no doubt about that. Clearly, that was one end that Barack Obama had in mind which is why he nominated Merrick Garland to Associate Justice of the U.S. Supreme Court. It was one end that Hillary Clinton would have had in mind were she to have been elected U.S. President. For, she would certainly have been elated to sit Judge Garland on the high Court. Thankfully, neither the previous U.S. President or the one who would be Queen will never get their wish.If Judge Neil Gorsuch is confirmed and he should be and undoubtedly will be—despite a Democratic threat of filibuster of his confirmation which is now unfolding—the Heller case should remain untouched—even if ignored by various Circuit Courts as we see in Kolbe. Heller is the first case that extends—albeit tacitly—the idea that, where the very core of a fundamental right is attacked in a government action—a facial challenge to that governmental action will be given proper consideration.The U.S. Supreme Court made clear enough in Heller, to the surprise and, we are sure, much to the consternation of the D.C. Government and to the U.S. Circuit Court of Appeals for the District of Columbia, that the U.S. Supreme Court would not shrink from applying facial challenge methodology to an action by government that attacks the core of the Second Amendment even if that had not previously been done. We should see that methodology applied as well in Kolbe if Kolbe or a similar case is heard by the U.S. Supreme Court. We hope and trust and pray that Judge Gorsuch sits on the high Court as the Ninth Justice when this happens.We continue with our analysis of the Kolbe case with Part Five of our multi-series article, to be posted shortly._________________________Copyright © 2017 Roger J Katz (Towne Criour), Stephen L. D’Andrilli (Publius) All Rights Reserved.

3/13/17 3/13/17

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.

3/10/17 3/10/17

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.