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Defying the Supreme Court in Kolbe v. Hogan

The term “assault weapon” was coined in 1988. At that time, with the public and media having lost interest in banning handguns, a gun-control strategist sought to invent a “new topic in . . . an ‘old’ debate.” He announced:

Assault weapons—just like armor-piercing bullets, machine guns, and plastic firearms—are a new topic. The weapons’ menacing looks, coupled with the public’s confusion over fully automatic machine guns versus semi-automatic assault weapons—anything that looks like a machine gun is assumed to be a machine gun—can only increase the chance of public support for restrictions on these weapons. [Emphasis in original] [1]

Exploiting “the public’s confusion” worked. Firearms are classified as “assault weapons” based on their having external attachments like vertical pistol grips (which provide stability and accuracy) and barrel shrouds (which prevent burns) that do not change how the guns operate. The first ban enacted in California outlawed guns based on appearance. The result was a ban on some single-shot and nonexistent guns (because of typographical and other errors in the sources used by legislative aides).

The corollary to accepting the legitimacy of such bans is that there is no coherent limit on what firearms may be banned, despite the U.S. Supreme Court’s having held in District of Columbia v. Heller and McDonald v. City of Chicago that the Second Amendment protects bearable arms commonly possessed by civilians for lawful purposes. Since the AR-15 rifle, which is covered by every or almost every “assault-weapons” ban, became available for sale to the public over half a century ago in 1963, tens of millions of those and other covered weapons have been owned by tens of millions of perfectly peaceable citizens. Yet the weapons and their owners are routinely demonized—statements like “There is no legitimate use for these weapons” and “The only people who use them are mass murderers” are typical—with the aim of making it easier to target them with harsh and unjustified legislation.

The en banc U.S. Court of Appeals for the Fourth Circuit was happy to buy into this misinformation-turned-demonization campaign when it upheld Maryland’s “assault-weapons” ban against a Second Amendment challenge in Kolbe v. Hogan, 849 F.3d 114 (4th Cir. 2017). The Supreme Court acquiesced when it declined to grant certiorari. The Fourth Circuit upheld a ban on possession by members of the general public, repeatedly referring to the banned firearms as “weapons of war.” The majority based its characterization on the AR-15 rifles being “‘like’ ‘M-16 rifles.’” The latter rifle, of course, is the military’s fully automatic battle rifle, which Heller indicated could be constitutionally banned. The majority also upheld, against an equal protection challenge, an exception to the ban for retiring law-enforcement officers who are given their duty “assault weapons” by their departments upon leaving the job.

As a threshold matter, the Supreme Court squarely rejected, in Staples v. United States, 511 U.S. 600 (1994), the notion that AR-15s are weapons of war like M-16s. In that decision, the Court  held that the mere possession of an AR-15 was an entirely “innocent act” consistent with the “long tradition of widespread lawful gun ownership by private individuals in this country,” notwithstanding the rifle’s being the semi-automatic civilian version of the M-16. It held that the owner of an AR-15 could not be held strictly liable for possessing the weapon, which sometimes fired automatically because of a defect, as he could have been for possession of true weapons of war like M-16s (which have visible selector switches clearly indicating that they can be fired fully automatically) or hand grenades.

Heller went further, holding that a weapon’s military utility is irrelevant to the question of whether citizens commonly possess it for lawful purposes, and therefore whether it receives Second Amendment protection. And Heller, in using “like” to refer to M-16s, does so in a context where it accepted that machine guns did not receive Second Amendment protection because they were “highly unusual in society at large”—that is, not commonly possessed for lawful purposes. Semi-automatic AR-15s, then, are not like M-16s under Heller because they are not unusual but very common in American society.

More poignant than the Fourth Circuit’s failed legal gymnastics, however, is its philosopher king–style elitism—the same attitude evinced by much of modern gun control. The Maryland State Police[2] and the U.S. Marshals who protect federal judges use AR-15s as their duty rifles. If these rifles were truly “weapons of war,” they would only be good for waging war against the citizenry and should not be used by law enforcement—at least not on a regular basis. This is doubly true of retired officers, who are members of the “mere” (quotes mine) citizenry.

The Kolbe majority knows very well, as do “all superior beings who have taken upon themselves the terrible burden of civilizing the masses,” in the words of the attorney and writer Jeffrey R. Snyder, that “laws are for other people.” In upholding the exception for law enforcement, the Kolbe court implicitly held that judges’ and retired officers’ lives are worth protecting with the best available tools (they are), but that the rest of the gun-owning rabble is not. Not so. All lives matter.

Little wonder that the members of the National Sheriffs Association, who are elected officials with close daily contact with their citizens (unlike federal judges or philosopher kings), asked the Supreme Court to reverse the Fourth Circuit’s decision in an amicus brief. They use these weapons to protect their citizens, not wage war on them, and vehemently objected to Kolbe’s implicit characterization to the contrary. The Supreme Court of Connecticut agreed when it held in State v. DeCiccio, 105 A.3d 165 (Conn. 2014), that “widespread acceptance of batons within the law enforcement community also supports the conclusion that they are not so dangerous or unusual as to fall outside the purview of the second amendment.”

The Kolbe majority also defied Heller by applying intermediate scrutiny in a form that resembles rational basis review. Such treatment of Second Amendment claims is old news, best expressed by members of the Supreme Court dissenting from denials of certiorari here, here, here, and by a half-hearted GVR[3] and earnest concurrence protesting the lower court’s “ill treatment of Heller”[4]. Two points, however, merit discussion.

First, Fourth Circuit intermediate scrutiny requires (in the majority’s words) “the government to show that the challenged law ‘is reasonably adapted to a substantial governmental interest.’” In other words, although the means chosen to limit, in this case, unlawful shootings by “assault weapons” need not be the least intrusive one, it must be as unobtrusive as reasonably practical. In Maryland’s case, as the panel opinion noted, the state already required registration of “assault weapons” before the ban was enacted. The national experience with the holders of concealed-carry licenses suggests that those who will register are exceedingly law-abiding and trustworthy with their guns, as compared to the general population and even as compared to police.[5] Thus, Maryland already had in place a scheme that would ensure that the banned weapons would not be misused.

Second, like other courts attempting to limit Heller to its facts, the Fourth Circuit opined that Heller struck down only a ban on handguns, “the quintessential self-defense weapon,” in the home; since the weapons at issue were not handguns, these could supposedly be banned. This again shows blatant defiance of the Supreme Court. Heller also struck down a ban on keeping operable long guns in the home; keeping them inoperable renders long guns unusable for self-defense. Not only that, the banned weapons are far better for home defense than handguns because they are more accurate and more powerful than handguns.

Law-enforcement officers routinely say their handguns are underpowered, and that they carry them only because they are portable, not because they are optimal for defense of self and others. Indeed, that is why officers are issued “assault weapons.” What applies to officers on the street applies with equal force to the citizen defending against a home invasion (which is how the banned weapons would be used, given that Maryland does not allow them to be carried in public).

This takes us to the question of Maryland’s ban on the transfer of large-capacity magazines (LCMs) capable of holding more than 10 rounds. As with the law-enforcement exception for banned firearms, the majority upheld an exception for LCM transfer to law-enforcement officers, citing their training in LCM use and storage. But citizen owners are just as capable of obtaining this training, and hobbyists typically train far more frequently than the annual instruction required of Maryland officers. At a bare minimum, applying intermediate scrutiny in an intellectually honest manner would have led the court to strike the LCM (and “assault-weapon”) ban on the ground that the safety levels seen by police officers could be achieved by requiring the same training of citizen owners.

More importantly, there is no meaningful evidence that LCMs are deadlier in mass or other criminal shootings. This fits with the conclusion reached in studies showing that 1) LCMs are unlikely to increase casualty counts because most mass shooters carry multiple guns, carry multiple magazines which can be quickly changed, and, in any event, maintain such slow rates of fire that the time needed to reload would not increase the time between shots[6]; and 2) that LCM availability is unconnected with “the number of murders, the murder rate, the number of gun homicides, the gun homicide rate, or deaths and in jury caused by public shootings.”

One oft-cited (including by the Kolbe majority) study sponsored by the National Criminal Justice Reference Service examining the effect of the federal government’s 1994 ban on “assault weapons” did find more shots fired, victims hit, and wounds per victim in shootings in which LCMs were involved. The NCJRS study concluded, however, that “the evidence on these matters is too limited (both in volume and quality) to make firm projections of the ban’s impact” and that “the ban’s impact on gun violence is likely to be small at best, and perhaps too small for reliable measurement. . . .  [I]t is not clear how often the outcomes of gun attacks depend on the ability to fire more than 10 shots . . . without reloading.”

These studies did not compare the number of deaths in LCM versus non-LCM shootings. A study done for a court case challenging Colorado’s 15-round LCM ban found, at a very low level of reliability that was far from statistical significance, that in shootings in which sub-15-round magazines were used, the number of deaths decreased by 0.4 per incident. This figure, even if accurate, must be weighed against the benefits of the massive number of annual defensive gun uses, estimated by skeptics to be 100,000 on the low end, but more likely to be around 700,000.[7]

It is absurd for the Fourth Circuit Court of Appeals to have upheld a ban on in-home possession of firearms that are used in some fraction of the nation’s 636 long gun murders in 2016 when the Supreme Court held that the handguns responsible for 7,105 murders that year receive Second Amendment protection. Worse, perhaps, is the U.S. Supreme Court’s delegitimizing refusal to review blatant affronts to its authority.

[1] Josh Sugarmann, “Assault Weapons and Accessories in America,” Violence Policy Center, Washington, D.C., 1988.

[2] A Maryland State Police sergeant emailed the following on November 21, 2017 to an anonymous recipient: “Maryland State Police uses the Colt 6920 AR-15 rifle.” (Names withheld to protect confidentiality.)

[3] “GVR” stands for “grants, vacates, remands.” The term is used semi-colloquially among attorneys to refer to cases where the Supreme Court grants certiorari, vacates the case, and remands for application of the proper law without hearing the case.

[4] Another defiant case for which a dissent from denial of certiorari was not written is Drake v. Filko, 724 F.3d 426 (3d Cir. 2013), which is discussed in Robert J. Cottrol and George A. Mocsary, “Guns, Bird Feathers, and Overcriminalization:  Why Courts Should Take the Second Amendment Seriously,” Georgetown Journal of Law and Public Policy 14:17 (2016), 31-33.

[5] For data collected from state licensing agencies, see Nicholas J. Johnson, David B. Kopel, George A. Mocsary, and Michael P. O’Shea, Firearms Law and the Second Amendment: Regulation, Rights, and Policy, Aspen Casebook Series (Wolters Kluwer Law and Business, Second Edition, 2017), pp. 50-51.

[6] “Pauses” long enough to allow potential victims to escape that are not the result of slow rates of fire typically result from gun malfunctions (which take significantly longer to correct than the time to change a magazine), and those committing gun crimes often eject magazines before emptying them. See, for example, Joint Appendix at 3543-48, Colorado Outfitters Association v. Hickenlooper, 823 F.3d 537 (10th Cir. 2016) (Nos. 14-1290, 14-1292).

[7] Firearms Law and the Second Amendment, Second Edition, pp. 6, 18-21. (Estimates range to more than 3,000,000.)

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