AR-15s Before Supreme Court - Kolbe v Maryland

A few things bear qualification. The case in question is Kolbe v. Hogan. It is not being brought by GOA; they simply wrote an amicus curiae brief, as have the NRA, Pink Pistols, and the Cato Institute.

At issue is the 2013 Maryland Firearms Safety Act, which banned standard-capacity magazines and pretty much anything they could think to call an "assault weapon."

A challenge was brought at the District Court level, who affirmed its constitutionality, and an appeal was brought to the 4th CCA who initially found it unconstitutional under strict scrutiny.

The state AG didn't like that, so he demanded an en banc hearing, in which the full panel discarded strict scrutiny and applied an impressively weak version of "intermediate" scrutiny:

all that is required: a reasonable, if not perfect, fit between the (law) and Maryland’s interest in protecting public safety.
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(Notice the opinion spends its first three pages recalling the details of mass shootings.)

Plaintiffs are now asking for Supreme Court review. While SCOTUS has punted on this issue before, perhaps the appointment of Justice Gorsuch will change that.
 
It is like banning gasoline, in cans, because one was used in an arson, in which lives were lost.
 
From the 4th's decision:

That is, we are convinced that the banned assault weapons and large-capacity magazines are among those arms that are “like” “M-16 rifles” — “weapons that are most useful in military service” —which the Heller Court singled out as being beyond the Second Amendment’s reach. See 554 U.S. at 627 (rejecting the notion that the Second Amendment safeguards “M-16 rifles and the like”).
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Here's what Heller actually says:


It may be objected that if weapons that are most useful in military service—M-16 rifles and the like—may be banned, then the Second Amendment right is completely detached from the prefatory clause. But as we have said, the conception of the militia at the time of the Second Amendment’s ratification was the body of all citizens capable of military service, who would bring the sorts of lawful weapons that they possessed at home to militia duty.
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Note that the first sentence presents a hypothetical objection ("It may be objected") and the second sentence refutes it ("But as we have said"). The 4th has seen fit to take selected words from the first sentence completely out of context and twist them 180 degrees from Heller's actual position on the definition of the meaning of the word "arms":

“Before addressing the verbs “keep” and “bear,” we interpret their object: “Arms.” The 18th-century meaning is no different from the meaning today. The 1773 edition of Samuel Johnson’s dictionary defined “arms” as “weapons of offence, or armour of defence.”

“Although one founding-era thesaurus limited “arms” (as opposed to “weapons”) to “instruments of offence generally made use of in war,” even that source stated that all firearms constituted “arms.”

DC v Heller, pages 7-8
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The 4th's dubious citation of Heller is so opposed to what Heller actually says that it wouldn't surprise me if SCOTUS sends this back for reconsideration without even hearing the case via a per curiam opinion, just as they did with Caetano v. Massachusetts in 2015. No matter how an individual Supreme Court justice may feel about the issue at hand, they simply can't allow lower courts to pervert Supreme Court decisions like this. Not if the word "Supreme" is going to mean anything.
 
This is an old discussion for us. I'll say the same thing.

I'll disagree on this :

No matter how an individual Supreme Court justice may feel about the issue at hand, they simply can't allow lower courts to pervert Supreme Court decisions like this. Not if the word "Supreme" is going to mean anything.
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I think, from reading some scholarly books on SCOTUS decisions, that currently they decide based on their politics first. The high toned legal blather isn't what drives them. Thus, four of them will not take on a case that might enhance gun rights. Of the supposed conservative wing - I don't think the majority of this subset is predisposed to the let the peasantry have the more powerful weaponry. Limited self-defense and sporting guns suit their world view.

The risk of taking on this case or similar is that the RKBA would lose with a clear statement that bans on EBRs and higher capacity mags is just dandy.

Heller (as said by many) left a giant hole for state bans to sail right through. You can quote and interpret what it said but the resultant behavior is more important. It is clearly used to support such and that's the way its going to be without a Congress that deals with such legislatively or a massive change in SCOTUS (meaning the current younger 'conservative's see the light or leave). Conclusion - for such cases - fat chance of a win and big chance of an RKBA loss.
 
Glenn E. Meyer said:
This is an old discussion for us. I'll say the same thing.

I'll disagree on this :

No matter how an individual Supreme Court justice may feel about the issue at hand, they simply can't allow lower courts to pervert Supreme Court decisions like this. Not if the word "Supreme" is going to mean anything.
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I think, from reading some scholarly books on SCOTUS decisions, that currently they decide based on their politics first. The high toned legal blather isn't what drives them.
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I see your point and share your concern, but when the Massachusetts Supreme Court tried to use the hoary old "the Second Amendment only covers muzzleloaders" argument in Caetano v. Massachusetts, despite a crystal clear refutation of that argument in Heller, SCOTUS issued a per curiam opinion sending it back for reconsideration. So based on what they did in that case, I still think there's a good chance they'll do the same thing here.
 
But - will they ever get to the point where they say the state bans are unconstitutional?

That's the end game and does such clearly state that future Federal EBR, mag bans are unconstitutional?

All the maneuvering must focus on the grand end game.
 
I want an F-15, with sidewinders, dammit!
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If you have the cash, what's stopping you?

Assuming you could find one for sale (in foreign country, maybe...)

the plane, you can get licenses for. The MISSILES you can get licenses for...

The cannon, on the other hand, I don't think will be allowed. The shells (the explosive ones) you can get licenses for, but the gun would be a full automatic, NOT on the civilian registry, before Apr 19, 1986, so the Hughes amendment would prevent it's legal registration and ownership (I think)

Personally, I am more than tired of various courts ruling the way they see fit, despite knowing the Supreme Court rulings. It puts me in mind of children, knowing they shouldn't do a certain thing, but doing it anyway, until they get caught by Mom or Dad...

The really ironic thing is that it was the anti gun forces attempt to ban ARs and others in that class that made them the most popular gun in the country.

AR-15s, FALs, and several other semi auto military look alike rifles were available for decades before the current hysteria that began in the 80s. They were expensive, compared to most sporting rifles, and while sales were steady, they were only a small fraction of the market. Simply put, not a lot of people wanted them.

UNTIL the govt began making noises about banning them.
 
Well, Mike Dillon supposedly had a fully armed jet fighter he used to strafe things with in the desert. :) As of the late 80s I read in Readers Digest that there were 27 AH1 Cobras fully armed in civilian hands. Armed tanks are available, albeit mostly antique WWII stuff that wouldn't last 5 seconds on a modern battlefield. There is stuff out there for sale, if you have the cash - heck, England sold an aircraft carrier on the open market!

44AMP is right - the AR15 is over 50 years old - I think the first civilian models went on sale in 1963. Its politics driven, and Mr Meyer is probably the most right - politics drives the highest court in the land more and more, with a deeper division each year.
 
The state AG didn't like that, so he demanded an en banc hearing, in which the full panel discarded strict scrutiny and applied an impressively weak version of "intermediate" scrutiny…
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The problem with this is that although the Heller Court failed to designate the appropriate level of judicial review with regard to firearm regulatory measures, it clearly did not intend for strict scrutiny to be used.

Indeed, subject to strict scrutiny, virtually every firearm regulation would be invalidated as un-Constitutional – including regulatory measures clearly accepted by the Heller majority, such as conceal carry laws, laws regulating the sale of firearms, and laws restricting firearms in certain venues, such as police stations and detention facilities.

We know this to be a fact from the Heller ruling itself:

“Like most rights, the right secured by the Second Amendment is not unlimited. . . . [N]othing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools or government buildings . . . .” Heller, 128 S. Ct. at 2817

Per Heller, therefore, it’s perfectly reasonable to infer that intermediate scrutiny is the appropriate level of judicial review concerning firearm regulatory measures, where the lower courts have been correct to use intermediate scrutiny, consistent with Heller.

This may also explain why the Court is reluctant to hear the Maryland case: that to strike down the Firearms Safety Act would be to place in jeopardy other firearm regulatory measures the justices approve of, measures they consider necessary, proper, and Constitutional.

And once again, as always, those who disagree with the above should not take issue with ‘gun-control’ advocates, the circuit courts of appeal, or the Maryland State Legislature – your issue should only be with the Supreme Court, and the late Justice Scalia.
 
jdc1244 said:
The problem with this is that although the Heller Court failed to designate the appropriate level of judicial review with regard to firearm regulatory measures, it clearly did not intend for strict scrutiny to be used.

...

Per Heller, therefore, it’s perfectly reasonable to infer that intermediate scrutiny is the appropriate level of judicial review concerning firearm regulatory measures, where the lower courts have been correct to use intermediate scrutiny, consistent with Heller.
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There are a great many attorneys who do not agree that Heller says, or even implies, that strict scrutiny is not the appropriate standard for 2A cases. In fact, I think you are the first I've encountered to propose such.
 
Heller did not address scrutiny. Perhaps that was because the justices did not agree. Perhaps they wanted more background. We just don't know.
 
When the second amendment was written, the exact rifle, used by soldiers, was available to the farmers. No more, no less.

A muzzleloader.

And why regulate barrel lengths on rifles/shotguns? What difference does it make, over 16" is ok, under, not? How silly.
For instance, 14" on my pump 870 in Canada, fine, much handier indoors. You could handle it while you negotiated a doorway.

Silencers/mufflers? No difference, and the only reason to have then, save your hearing. Always remember the old movies, silencer equip revolvers! Yes.
 
Given the current news from Las Vegas, might not be the right time for such a challenge. Judges are subject to moral panic like the general population and legislators.

With a tight court, I'd prefer that such cases don't go forward or are not taken right now. We don't want a strong anti precedent from SCOTUS and that's a real possibility.

It was the risk in Heller (5 to 4) and gun rights just made it.
 
Brit said:
And why regulate barrel lengths on rifles/shotguns? What difference does it make, over 16" is ok, under, not? How silly.
For instance, 14" on my pump 870 in Canada, fine...
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<16" barrels and <18" barrels on shotguns are subject to the NFA in the U.S. for exact same reason that .25 and .32 caliber pistols are Prohibited arms in Canada while .380 pistols are not.

Legislators were under pressure to ban SOMETHING, and these items were unpopular with politically powerful sportsmen's groups, so they were chosen for expediency's sake. :rolleyes:
 
I agree,bad timing.
And I understand what I am about to say will make no difference.
Its technical gun stuff that does not hold up well to raw emotion.
The weapon firing full auto did not sound like an M-16 or M-4.

My ear is not well calibrated to full auto weapons,but my guess is a M-249 SAW.
 
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