DID THE FEDERAL COURTS IN THE FOURTH CIRCUIT BETRAY AMERICA’S FUNDAMENTAL RIGHT OF THE PEOPLE TO KEEP AND BEAR ARMS? IT APPEARS SO.

MARYLAND’S FIREARM SAFETY ACT: ATTACKING THE CORE OF THE SECOND AMENDMENT THROUGH THE VENEER OF PROMOTING PUBLIC SAFETY.

KOLBE VS. HOGAN

PART TEN

Despite the need for deference to our federal and State court systems, we must speak out and speak out harshly when it is clear, on both legal, logical, and, not least of all, ethical grounds, that a court disregards U.S. Supreme Court precedent and does so, not out of ignorance of the law as it exists, but with apparent deliberate disregard to Supreme Court law, and more so when it acts with clear disdain for Supreme Court, rendering decisions at odds with Supreme Court precedent with impunity. We certainly see the hallmarks of this in recent lower federal Court decisions and in higher federal appellate Court decisions. The disdain for U.S. Supreme Court precedent in matters involving our Nation’s Second Amendment is not, today, unfortunately, a unique, or, at worst, rare, happenstance. No! disdain for high Court rulings in matters involving our sacred Second Amendment has become no less prevalent—contrary to what Americans might think—in the decisions handed down in the seminal Second Amendment U.S. Supreme Court cases: District of Columbia vs. Heller, 554 U.S. 570; 128 S. Ct. 2783; 171 L. Ed. 2d 637 (2008), and McDonald v. Chicago, 561 U. S. 742; 780, 130 S. Ct. 3020; 177 L. Ed. 2d 894 (2010).

The Kolbe vs. Hogan case ((Kolbe vs. O’Malley, 42 F. Supp. 3d 768 (D. Md. 2014); vacated and remanded, Kolbe vs. Hogan, 813 F.3d 160 (4th Cir. 2016); rev’d en banc, Kolbe vs. Hogan, 849 F.3d 114 (4th Cir. 2017)), is a case in point: a case that demands harsh criticism. The ultimate decision must be deemed no less than a betrayal; and, lest some believe we use the harsh word, ‘betrayal,’ here as mere hyperbole, we wish to controvert that belief. We are deadly serious in our choice of words to describe the ultimate decision handed down by the majority of the U.S. Court of Appeals for the Fourth Circuit.

WHY WE ASSERT THAT THE ULTIMATE DECISION OF THE FOURTH CIRCUIT COURT OF APPEALS OPERATES AS A BETRAYAL

The decision in Kolbe stands as a betrayal first because the rulings of the lower U.S. District Court that first heard the case, and the rulings of the full panel of the U.S. Court of Appeals that had the last word in the case, applied legal reasoning in clear contravention of and in contradistinction to U.S. Supreme Court case law precedent as set forth in District of Columbia vs. Heller, 554 U.S. 570; 128 S. Ct. 2783; 171 L. Ed. 2d 637 (2008), and in McDonald v. Chicago, 561 U. S. 742; 780, 130 S. Ct. 3020; 177 L. Ed. 2d 894 (2010).

The rulings of the U.S. District Court of Maryland and those of the U.S. Court of Appeals for the Fourth Circuit that reviewed the case, en banc, cannot be reconciled with the rulings of the high Court, try as some jurists on those Courts might, opining that Maryland’s outrageous gun legislation does not offend the Second Amendment and, therefore, that it is consistent with or otherwise compatible with the holdings and reasoning of Heller and McDonald. Yet, the fact of the matter is that the rulings and reasoning of the U.S. District Court of Maryland, and of the full panel of the U.S. Court of Appeals for the Fourth Circuit that had the final word in the case, are not consistent with the rulings and reasoning of the high Court’s majority and cannot be legally or logically reconciled with those rulings and reasoning, and, so, operate as blots on our case law—opinions resisting high Court rulings—manifesting a federal Circuit’s defiance of a bedrock principal of U.S. jurisprudence: adherence to case precedent.

The ultimate rulings in Kolbe vs. Hogan operate as a betrayal, second, on an elemental level. They operate as a betrayal to our Constitution, to our Nation, and, not least of all, to the American people, namely and specifically, as a betrayal of the natural right of self-defense existent in the right of the American people to keep and bear arms.

The rulings of the lower U.S. District Court, as affirmed by the full panel of the U.S. Court of Appeals for the Fourth Circuit, defiantly and decisively and rudely attack this sacred, fundamental right of the U.S. citizenry as codified in the Nation’s Second Amendment of the Bill of Rights.

How did the federal Courts of the Fourth Circuit display their disenchantment with the right of the people to keep and bear arms and by what tortuous reasoning did those Courts come to disenfranchise a substantial number of American people of their natural right to keep and bear arms?

THE U.S. DISTRICT COURT OF MARYLAND HAS FIRST CRACK AT THE OBSCENELY RESTRICTIVE FIREARMS SAFETY ACT OF MARYALND

Before the Kolbe case wended its way to the U.S. Court of Appeals for the Fourth Circuit for an en banc review, the lower U.S. District Court of Maryland had first crack at it, and did so, falling back on its own faulty, indeed benighted, case law precedent, in clear and abject derogation to and defiance of case law precedent set by the U.S. Supreme Court. But the Fourth Circuit is not alone in their tacit condemnation of U.S. Supreme Court precedent in Second Amendment matters. Other federal Circuits have acted similarly: relying on their own faulty case law precedent and on similar rulings of sister federal Courts in other jurisdictions, such as, and principally, those of the Second, Seventh, and Ninth Circuits, and those of the D.C. Circuit—all of which continue to defy high Court case law precedent, as if to suggest that the combined rulings and reasoning of multiple Appellate Courts outweigh the singular holdings and reasoning of the highest Court in the Land, even as these Appellate Courts, as one, pretend, insincerely, to apply the rulings of the high Court in the decisions they render. The Kolbe case is simply the latest major Second Amendment case coming out of any Circuit that, as with decisions emanating from sister Courts that hold the same disdain toward the Second Amendment, reflects hostility toward, rather than deference toward the rulings, reasoning, and methodology of the high Court Majority in the landmark Heller and McDonald cases.

The Kolbe case was first heard in the United States District Court of Maryland, where the case was captioned, Kolbe vs. O’Malley, 42 F. Supp. 3d 768; 2014 U.S. Dist. LEXIS 110976; 2014 WL 3955361 (U.S. Dist. Md. 2014). The Governor, at the time, Martin J. O’Malley, was named as a Party Defendant in the case. His name, as a Party Defendant, was replaced by that of Larry Hogan, who became the new Governor of Maryland as the Kolbe case slowly, inexorably wended its way through the federal Court system.

The Kolbe case remains noteworthy in two important respects. First, the case illustrates the extent to which a federal Court will go to disregard United States Supreme Court reasoning and rulings when that lower federal Court permits its personal philosophical predilections to interfere with sound legal judicial decision-making. Second, the decision of the U.S. Court of Appeals for the Fourth Circuit that heard the case, en banc, negatively impacts the fundamental rights and liberties of the American people.

But, it is one thing for a lay person to happen to hold a negative if aberrant view toward possession and ownership of firearms and toward the Second Amendment because that negative viewpoint does not of itself translate into the infringement of another American’s fundamental, natural right to keep and bear arms. It is, though, quite another thing for a jurist, deciding a case that impacts millions of law-abiding gun owners, to thrust his or her personal viewpoint on other Americans and place the judicial imprimatur on a matter that unconstitutionally intrudes on the rights and liberties of Americans who do not happen to share that jurist’s philosophical bent toward gun possession and gun ownership and, more to the point, when that philosophical viewpoint, culminating in a judicial decision, is contrary to the rulings and reasoning of the highest Court in the Land, the United States Supreme Court. But that is what we have here and what, unfortunately, we see in many lower U.S. District Court and what we see in higher U.S. Circuit Courts of Appeal decisions involving the core of the Second Amendment to the United States Constitution.

THE U.S. DISTRICT COURT OF MARYLAND’S DECISION WAS DECIDED ON MOTION; THE CASE NEVER WENT TO TRIAL.

Critical as this Second Amendment case is to the rights and liberties of law-abiding Americans, the case never went to trial. The U.S. District Court of Maryland decided Kolbe on Motion, specifically on arguments presented in Defendants’ Motion for Summary Judgment (“MOSJ”). An MOSJ is governed by Fed R. Civ. P. 56(a). How does that Rule work?

Fed R. Civ. P. 56(a) sets forth that a Party’s Motion will be granted only if the movant shows that there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law. But, an MOSJ requires a Court to consider the Motion in a light most favorable to the nonmoving Party, in this instance, the Party Plaintiffs, Plaintiff Kolbe and others. Did the Court follow this directive of the Rule? Hardly!

THE CENTRAL ISSUE BEFORE THE U.S. DISTRICT COURT OF MARYLAND THAT HAD FIRST STAB AT KOLBE.

How a Court frames the issues before it, often goes a long way, in determining how that Court will ultimately decide a case.

The central question before the U.S. District Court went to the constitutionality of Maryland’s Firearm Safety Act. What does the Act say? In critical part, it says this:

The Firearm Safety Act of 2013 provides in general that, after October 1, 2013, a person may not possess, sell, offer to sell, transfer, purchase, or receive ‘assault pistols,’ ‘assault long guns,’ and ‘copycat   weapons’ (together, ‘assault weapons’). Md. Code Ann., Crim. Law (‘CR’) §§ 4-301(d), 4-303(a)(2). 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.’ Id. § 4-305(b). 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,’ although different penalties are provided for a person who uses an assault weapon or LCM in the commission of a felony or a crime of violence. Id. § 4-306.”

The Firearm Safety Act of 2013 is a highly restrictive gun control Act. Maryland’s gun control attacks the very core—the very heart—of the Second Amendment and it does so in a particularly blatant fashion. No doubt about it. The Party Plaintiffs rightly, appropriately challenged the constitutionality of it, asserting that a State ban on firearms lumped into the amorphous category, ‘assault weapons,’ and a ban on critical components of those firearms, referred to as “LCMs” (large capacity magazines), impermissibly violates the Second Amendment. Plaintiffs also argued the Act violated the Equal Protection Clause of the Fourteenth Amendment and that the Act is void for vagueness.

For relatively quick final resolution of the case both Party Plaintiffs and Party Defendants, together, agreed the District Court ought to bypass consideration of Plaintiffs’ prayer for a preliminary injunction and should proceed immediately on consideration of the case on its merits. The Court did so.

THE SECOND AMENDMENT CHALLENGE

Did the Court prejudge the case? Consider: In the first paragraph of the Opinion, the Court asserted, “On May 16, 2013, in the wake of a number of mass shootings, the most recent of which claimed the lives of twenty children and six adult staff members at Sandy Hook Elementary School in Connecticut, the Governor of Maryland signed into law the Firearm Safety Act of 2013. The Act bans certain assault weapons and large-capacity magazines (‘LCMs’).”  Kolbe vs. O’Malley, 42 F. Supp. 3d 768, 774; 2014 U.S. Dist. LEXIS 110976; 2014 WL 3955361 (U.S. Dist. Md. 2014).

The assertion is simply a presumptive rationale for enactment of a draconian antigun Act that the U.S. District Court of Maryland bought into. It has no pertinent legal merit. It should not have been included in the Court’s Opinion.

If the U.S. District Court felt compelled to make the assertion, the Court could have done so and ought to have done so merely in a footnote to the Opinion, as a parenthetical matter. Instead, the Court’s assertion became the touchstone of its decision—the paramount ground upon which it rendered its decision, having agreed that Maryland’s public policy objective justified banning an entire category of weapons, commonly used by millions of Americans, thereby accepting, on its face, the constitutionality of the governmental action, rather than scrutinizing it in terms of its deleterious impact on a fundamental Constitutional right.

The District Court’s analysis was wrong, blatantly wrong. In fact, the late Justice Antonin Scalia, writing for the majority in District of Columbia vs. Heller, pointed out—cautioned Courts of review—that certain policy choices are off the table precisely because they effectively and essentially obliterate exercise of the right of the people to keep and bear arms enshrined in the U.S. Constitution. Justice Scalia said this:

“We are aware of the problem of handgun violence in this country, and we take seriously the concerns raised by the many amici who believe that prohibition of handgun ownership is a solution. The Constitution leaves the District of Columbia a variety of tools for combating that problem, including some measures regulating handguns [citation omitted]. But the enshrinement of constitutional rights necessarily takes certain policy choices off the table. These include the absolute prohibition of handguns held and used for self-defense in the home. Undoubtedly some think that the Second Amendment is outmoded in a society where our standing army is the pride of our Nation, where well-trained police forces provide personal security, and where gun violence is a serious problem. That is perhaps debatable, but what is not debatable is that it is not the role of this Court to pronounce the Second Amendment extinct.” District of Columbia vs. Heller, 554 U.S. 570, 636; 128 S. Ct. 2783, 2822; 171 L. Ed. 2d 637, 684 (2008),

The U.S. District Court did not heed Justice Scalia’s directive. Instead it went its own way, either oblivious to the import of Justice Scalia’s warning or exhibiting a deliberate disdainful attitude toward it.

WHAT IS THE APPROPRIATE STANDARD OF REVIEW A COURT SHOULD EMPLOY WHERE THE VERY CORE OF THE SECOND AMENDMENT IS ATTACKED?

Since the standard employed will have decisive impact on the result obtained, it is incumbent on a Court of competent jurisdiction to use the correct Standard of review. There are three traditional standards of review: rational basis, intermediate scrutiny, and strict scrutiny. These three standards of review of a governmental action may be considered tiers or levels of scrutiny. What are the differences? Generally, as one scholar asserts “The essential difference among rational basis review, intermediate scrutiny, and strict scrutiny lies in the extent to which the Court is willing to examine empirically the nexus between the challenged statute’s ends and the means by which they are sought. Depending on which test is applied, the classification must either be ‘rationally related,’ ‘substantially related,’ or ‘narrowly tailored’ to a ‘legitimate,’ ‘important,’ or ‘compelling’ state interest. The varying levels of scrutiny used to keep the state in line with the Constitution represent the reality that while policymakers are granted considerable leeway in achieving societal goals, there are occasions where we prefer not to grant them a presumption of benevolence in their policy choices.” NOTE: HIV-Positive, Equal Protection Negative.” 81 Geo. L.J. 375, 383, by Sean Doyle, J.D., Georgetown University. Although the focus of that article is directed to the “extent to which traditional equal protection jurisprudence and the current Supreme Court will protect individual rights when policymakers attempt to control the spread of AIDS,” Id. at 378, the author’s brief description of the salient differences among the traditional standards of review have general application. The author of the Note added this remark: “When it is likely that ignorance, prejudice, or antipathy has informed the judgment of policymakers, courts will review the legislation from a more critical standpoint in order to safeguard the equitable promise of the Equal Protection Clause.” “HIV-Positive, Equal Protection Negative.” 81 Geo. L.J. 375, 383, by Sean Doyle, J.D., Georgetown University. That remark is more of a hope than a promise for, where, as here, a Second Amendment issue comes before a federal Court where a Court is biased against an American’s exercise of his or her Second Amendment right to keep and bear arms, that Court will invariably find an infringement of the right to be acceptable, notwithstanding the extent to which the infringement of the right is particularly onerous, even absolute.

The question we must ask here is: how do these three standards “stack up” when a Second Amendment challenge to a Governmental action is raised? And, more to the point, we need to ask: should a Court even invoke a standard of review when it is evident that the core—the very heart of the Second Amendment—is attacked? And, if no standard of review should be employed, what does that mean? How is a challenge to a Statute that attacks the Second Amendment–a Statute that attacks the very core of the Second Amendment– to be resolved?

These questions would not have been given serious consideration—a few of them might not have even been asked—prior to Heller and McDonald, but, post Heller and McDonald, a Court of review must be mindful of these questions and be ready to answer them and be wary of any governmental action directed against the Second Amendment.

Government actions that impinge on and infringe upon the Second Amendment—should reasonably, at the very least, invoke the highest level of review—strict scrutiny and, if that standard of review were properly employed, any highly restrictive gun legislation would be summarily struck down. And, where the very core of the Second Amendment is attacked, a governmental action that attacks the very core of the Second Amendment should be summarily struck down without need of a Court to resort to any standard of review. {We will discuss this latter idea in detail, in a future article}.

Yet, the Second Amendment has been, for decades, in many federal and State Courts, treated as a secondary, subordinate right rather than as a fundamental right, notwithstanding that its station in the Bill of Rights is overt, manifest–not left to conjecture. Be that as it may, some federal Circuits, to this day–and in clear contravention to the dictates of Heller and McDonald–still use rational basis–the most lenient–standard–to test the constitutionality of even the most draconian of gun laws such as, and particularly, the New York Safe Act which was signed into law by Governor Andrew M. Cuomo in January 2013.

The New York Safe Act is the model for restrictive gun legislation in various jurisdictions across the Country. Antigun Legislators in Congress had hoped the NY Safe Act, operating in the vanguard for federal legislation, banning so-called “assault weapons” and so-called “high capacity magazines,” would pave the way for such federal legislation. Recall that the Majority Speaker of the House—at the time, Harry Reid (D-Nevada)—would not allow Senator Dianne Feinstein’s notorious bill, the“Assault Weapons Ban of 2013,” introduced in January 2013, on the heels of the NY Safe Act, to come up for a vote on the Floor of the Senate. Dianne Feinstein was furious, but could do nothing to change Senator Reid’s mind. Reid realized that he did not have the votes. But, had Dianne Feinstein’s bill been enacted, it would have banned, nationally, 150 semiautomatic weapons, along with magazines that hold more than ten rounds of ammunition. Now that a Republican Majority holds both Houses of Congress, the possibility of federal antigun legislation is, thankfully, dead and buried. So efforts of antigun politicians and groups have now been redirected toward exacting a toll on the Second Amendment through enactment of semiautomatic weapon bans and “LCM” bans piecemeal across the Country–which, time-wise, is a lengthy, drawn-out process, but one which antigun groups and their friends in Congress and in State Legislatures and in the mainstream media are grudgingly accepting.

One way to throw a wrench in the efforts of antigun groups is for Republicans to use their Majority position to enact National handgun carry reciprocity legislation. A second way is for the U.S. Supreme Court to hear the Kolbe case and to reverse the decision of the U.S. Court of Appeals for the Fourth Circuit. Both sequence of events can occur in tandem if both Congress and the U.S. Supreme Court have the will to proceed to assert the right of the people to keep and bear arms, as the framers of our Constitution fully intended.

The latest example of a State sponsored semiautomatic gun ban–and one operating as a suppurating sore on the Second Amendment–is Maryland’s Firearm Safety Act—an Act that can potentially impact States beyond Maryland—namely, and specifically, those within the jurisdiction of the Fourth Circuit. Those States in the ambit of the Federal Fourth Circuit, apart from Maryland, include North and South Carolina, Virginia, and West Virginia. Governments of each of those States may impose the same bans on possession of similar semiautomatic weapons and on so-called “LCMs,” knowing that the U.S. Court of Appeals for the Fourth Circuit has already given its blessing on such onerous gun laws that may be enacted in the States of that Circuit.

THE U.S. DISTRICT COURT OF MARYLAND’S HORRIBLE, DISASTROUS, ERRONEOUS DECISION PAVED THE WAY FOR THE DECISION OF THE U.S. COURT OF APPEALS FOR THE FOURTH CIRCUIT, EN BANC, THAT AFFIRMED THE DECISION OF THE LOWER COURT, FINDING MARYLAND’S FIREARM SAFETY ACT NOT TO OFFEND THE SECOND AMENDMENT TO THE U.S. CONSTITUTION, ALTHOUGH THE DECISION STANDS IN CLEAR, ABJECT CONTRAVENTION TO U.S. SUPREME COURT REASONING AND LAW.

The U.S. District Court of Maryland handed down a decision favorable to the Government of Maryland. On the Second Amendment issue the Court said, inter alia: “the evidence demonstrates that the banned weapons pose a threat to law enforcement and public safety because of a combination of features of which the ability to penetrate soft body armor is just one [citation omitted]. Once finding that the ban will sufficiently further the government’s substantial interests in protecting public safety and preventing crime—including murders of police officers—to pass intermediate scrutiny, the court cannot question the legislature’s judgment that the Firearm Safety Act was the appropriate balance of various interests when compared to other possible regulations.” Kolbe vs. O’Malley, 42 F. Supp. 3d 768, 796 (D.C. Md. 2014).

The U.S. District Court applied “intermediate scrutiny.” having applied that standard of review, would there be –could there be–any doubt as to the outcome? None, of course. The Court concluded, saying, “In sum, the defendants have met their burden to demonstrate a reasonable fit between the Firearm Safety Act and the government’s substantial interests in protecting public safety and reducing the negative effects of firearm-related crime. Accordingly,  the Act does not violate the Second Amendment. Kolbe vs. O’Malley, 42 F. Supp. 3d at 797.

But how did the U.S. District Court come to apply intermediate scrutiny in Kolbe? Through what tortuous legal and logical reasoning did the U.S. District Court of Maryland come to believe that intermediate scrutiny was the appropriate standard of review to be used to test the constitutionality of Maryland’s Firearm Safety Act—an Act that banned outright any firearm the State Government of Maryland sought, arbitrarily, to place within the domain of firearms that the State defined as ‘assault weapons;’ and an Act that banned outright magazines for those weapons that happen to hold a number of rounds that the Government arbitrarily deemed to be illegal for the average law-abiding American residing in Maryland to own and possess?

We deconstruct the U.S. District Court’s reasoning in the next article of this continuing series.

______________________________________________

Copyright © 2017 Roger J Katz (Towne Criour), Stephen L. D’Andrilli (Publius) All Rights Reserved.