Federal judge upholds strict new Maryland gun laws

[Glenn E. Meyer]

The risk of Heller going the wrong way was one reason why the NRA didn't want to go to the SCOTUS. Heller was on the knife's edge.

My point is that we shouldn't overestimate it. I'm betting that we don't see another major victory that overturns the majority of current laws to lead us to the promised land of no permits needed, total reciprocity, FA for all, or overturning state AWBs. Like to be wrong but I didn't see Heller as a precursor to more great rulings.

I think we will see total handgun bans disallowed and states will have to offer some kind of shall issue (whose rules may be onerous). But the CA, NY, MA, CO, CT, etc. gun type rules will stand.

 

[CowTowner]

But the CA, NY, MA, CO, CT, etc. gun type rules will stand.

I hope I live long enough to see the residents of those states use the power of the polls to change the laws and avoid more court costs.

I can dream.

 

[Glenn E. Meyer]

Good thought, my read of the research on attitudes in those areas suggest that the urban populations are for the most part antigun. This isn't race, BTW - it seems to be urban east coast and parts of CA.

 

[Bartholomew Roberts]

While Scalia certainly wrote parts of Heller that can be criticized, his "presumptively lawful" language has been both a blessing and a curse. Courts aren't doing the required analysis - they are just blessing the regulation and quoting the presumptively lawful language.

On the one hand, it has screened out a lot of undesirable plaintiffs who might have made bad case law at the appellate level. On the other hand, we're still getting bad case law at the appelate level because those courts aren't really going much further in analysis either.

Either way, the decision was going to have to have language like that or you wouldn't have lost one Justice but several. Thomas is really the only Justice whose shown an interest in interpreting things even if it upsets the apple cart.

 

[TDL]

Good thought, my read of the research on attitudes in those areas suggest that the urban populations are for the most part antigun. This isn't race, BTW - it seems to be urban east coast and parts of CA.

We have pretty good data.

The first clear demographic is that anti gun views are a profoundly gender based.

The next clear determinate is political orientation.

Third, but still very significant is urban/not urban

 

[Bartholomew Roberts]

Federal Appeals Court reverses District court on summary judgment, remands for appeal of strict scrutiny:

"We first consider which of the two relevant standards of
scrutiny (strict or intermediate scrutiny) should apply.10 The
strict-scrutiny standard requires the government to prove its
restriction is “narrowly tailored to achieve a compelling governmental interest.” Abrams v. Johnson, 521 U.S. 74, 82
(1997); see Citizens United v. Federal Election Comm’n, 558 U.S.
310, 340 (2010) (explaining strict scrutiny “requires the
Government to prove that the restriction furthers a compelling
interest and is narrowly tailored to achieve that interest”
(internal quotation marks omitted)). To be narrowly tailored,
the law must employ the least restrictive means to achieve the
compelling government interest. See United States v. Playboy
Entertainment Group, Inc., 529 U.S. 803, 813 (2000).
Conversely, intermediate scrutiny requires the government to
“demonstrate . . . that there is a reasonable fit between the
challenged regulation and a substantial government objective.”
Chester, 628 F.3d at 683. For several reasons, we find that the
Act’s firearms and magazine bans require strict scrutiny.

As we have noted on previous occasions, “any law that would
burden the ‘fundamental,’ core right of self-defense in the home
by a law-abiding citizen would be subject to strict scrutiny.
But, as we move outside the home, firearm rights have always
been more limited.” United States v. Masciandaro, 638 F.3d 458,
470 (4th Cir. 2011). “[T]his longstanding out-of-the-home/inthe-home
distinction bears directly on the level of scrutiny
applicable,” id., with strict scrutiny applying to laws
restricting the right to self-defense in the home, see Woollard
v. Gallagher, 712 F.3d 865, 878 (4th Cir. 2013) (observing that
restrictions on “the right to arm oneself at home” necessitates
the application of strict scrutiny). Strict scrutiny, then, is
the appropriate level of scrutiny to apply to the ban of semiautomatic
rifles and magazines holding more than 10 rounds. See
Friedman, 784 F.3d at 418 (Manion, J., dissenting); cf. Heller
II, 670 F.3d at 1284 (Kavanaugh, J., dissenting) (reading Heller
as departing from traditional scrutiny standards but stating
that “[e]ven if it were appropriate to apply one of the levels
of scrutiny after Heller, surely it would be strict scrutiny
rather than . . . intermediate scrutiny”).

We recognize that other courts have reached different
outcomes when assessing similar bans, but we ultimately find
those decisions unconvincing."

 

[Isk]

Any idea where this leaves the current circuit split on the federal level? 7th and 2nd circuits have applied a lower standard, but the 4th has applied strict scrutiny. Have any other circuits applied strict scrutiny (I feel like maybe one other did, but I don't have time to do the research).

 

[Bartholomew Roberts]

Decision is here: http://michellawyers.com/wp-content/uploads/2013/10/Kolbe-v.-Hogan_Opinion.pdf

All the circuits claim to be applying strict scrutiny. When they apply it seems to be at question. Some of them seem reluctant to use strict scrutiny in anything short of the same exact facts as Heller. But this is big for the Fourth Circuit, I don't see how any semi-auto or magazine ban can survive strict scrutiny. They'll have to fight this one.

 

[Glenn E. Meyer]

I have deleted a string of messages that were off topic. The issue is Maryland and the decision. It is not about Virginia or other speculations about law in general. Nor is it to rehash what an assault boom-boom means unless you are referring specifically to the definitions in the PDF you can read.

Thanks for the update, Bart!

 

[wogpotter]

And, in the latest zigzag of this never ending mishmash a different judge has flung it back to the 4th circuit for review.

& the beat goes on le-de-da-de dee.

A federal appeals court dealt a potentially-serious blow to Maryland's landmark 2013 gun control law Tuesday, ruling that a lower court was wrong when it upheld the state's ban on assault rifles.

http://www.baltimoresun.com/news/maryland/bs-md-court-guns-20160204-story.html

 

[Bartholomew Roberts]

I've skimmed through the entire decision. I'm impressed that both the dissent and majority actually took the amount of time they did to address various arguments, including the majority's rebuttal of the 7th Circuit in Friedman. The Chief Judge of the Fourth Circuit wrote a tremendously strong, pro-Second majority opinion here, even dissenting on the equal protection issue in favor of gun owners.

My initial thoughts are that the Fourth Circuit was clear that not only did strict scrutiny apply; but the very highest application of strict scrutiny applied. There is no way Maryland's FSA can meet that standard. Unless Maryland can get an en banc hearing or the Supreme Court to overturn it, the FSA will be found unconstitutional given the standard the district court was instructed to apply.

The dissent points out the circular logic of the "common use" standard as applied by courts, i.e. machineguns can be banned because they are not in common use bevause they were made illegal before they became commonly used.

Both sides appear to have accepted whatever facts supported their argument without even acknowledging the extent to which there was factual disputes about those facts.

All in all, this should be good news for residents of MD, VA, NC, SC, and WV. However, MD will absolutely have to fight this as if it stands, it creates a circuit split that may prompt Supreme Court review of bans in other states. So this is a must-appeal/must-win for gun banners.

 

[Spats McGee]

. . . . it creates a circuit split that may prompt Supreme Court review of bans in other states. So this is a must-appeal/must-win for gun banners.

And for this very same reason, it's a must-win for us. We've waited for years for an appellate court to recognize that strict scrutiny should apply to 2A challenges, as it does with other individual, fundamental rights. While I recognize that taking this to SCOTUS presents some risks for gun rights, having The Big Nine finally settle the scrutiny issue in favor of strict scrutiny would be a huge victory for us.

 

[wogpotter]

Brian Frosh, MD's A.G and a rabid anti-gunner has (of course) appealed the appeal to originally appealed decision that was appealed.
La-de-da-de-dee.

 

[Bartholomew Roberts]

Well, it would be nice to see strict scrutiny applied in any context right now; but I disagree with the general precept behind this test that the right is subject to lesser scrutiny outside the home. And I think the dissent has a valid point that there is no real logical distinction between why an M16 can be banned but an AR15 cannot under the "common use" test described by the majority.

I'd be concerned if this went to SCOTUS, it might give the two-step test more validity than I think it warrants, even if SCOTUS avoids endorsing that part of the decision. And this is also a case we could win and still come out with some troubling dicta. Of course, better to win and have some inconvenient dicta than lose and have inconvenient precedent...

As wogpotter noted, MD AG says "It is on!"* http://www.oag.state.md.us/Press/2016/020416.htm

*Or he should have said that... I mean if we're going to use "Let's be real" in the dissent opinion, we might as well go full Idiocracy.

 

[zukiphile]

...I disagree with the general precept behind this test that the right is subject to lesser scrutiny outside the home.

My memory is fuzzy at this point, but isn't there either dicta in Heller, or a question/statement from Scalia in oral argument to the effect that the logic behind personal defense requires greater protection of the right to bear arms in public because one would be at greater risk in public?

 

[Al Norris]

When Scalia wrote that the 2A “surely elevates above all other interests the right of law-abiding, responsible citizens to use arms in defense of hearth and home.” 554 U.S. at 635., Did he actually mean that outside the home was to be evaluated in a lessor context?

So far, all the lower courts have found this to be true and have given less scrutiny to such laws.

There are several things to like about this opinion.

What remains is how the State of Maryland is going to respond. As BR has stated, they can request an en banc hearing or go straight to the SCOTUS. There is a third alternative, they can allow the remand and hope for a new District Court Opinion that weasels it's way past the Strict Scrutiny standard. It's been done before.

 

[Bartholomew Roberts]

Well, anything is certainly possible; but I think the District court is going to find it difficult to pay even lip service to the language from page 45 of the opinion and find the law meets strict scrutiny:

"In this way, Maryland’s outright ban on LCMs and “assault weapons” is akin to a law that “foreclose an entire medium of expression.” City of Ladue v. Gilleo, 512 U.S. 43, 55 (1994). Such laws receive exceptionally rigorous review in the analogous context of the First Amendment, id., and we see no reason for a different method here."

If the District Court decides that the law does meet strict scrutiny to the above standard on remand, I can't see that as anything more than a delaying tactic. I mean, that is basically a double "Hawaiian good luck sign" right back at the Circuit Court. If you are going to have to have that fight anyway, you'd better get something worth the irritation you are going to provoke by starting it like that.

 

[Tom Servo]

We've waited for years for an appellate court to recognize that strict scrutiny should apply to 2A challenges, as it does with other individual, fundamental rights

That's the thing. Heller made it clear the RKBA is an individual right, and Alito stated at least twice in the McDonald decision that the right was fundamental.

I don't see a way they can weasel out of applying strict scrutiny under those conditions.

 

[wogpotter]

With spin, large amounts of it.
The original was based on "extra deadly assault weapons being the preference for most criminal acts due to excessive destructive capacity". Despite the almost total lack of any incidents or evidence in support of the contention.

 

[Aguila Blanca]

Well, it would be nice to see strict scrutiny applied in any context right now; but I disagree with the general precept behind this test that the right is subject to lesser scrutiny outside the home. And I think the dissent has a valid point that there is no real logical distinction between why an M16 can be banned but an AR15 cannot under the "common use" test described by the majority.

Agreed. The notion that "the" Second Amendment somehow means one thing within the privacy of your home but means something else as soon as you step out the door is like something from the Red Queen in Alice in Wonderland.

I'd be concerned if this went to SCOTUS, it might give the two-step test more validity than I think it warrants, even if SCOTUS avoids endorsing that part of the decision. And this is also a case we could win and still come out with some troubling dicta. Of course, better to win and have some inconvenient dicta than lose and have inconvenient precedent...

Such as Heller and "presumptively lawful" infringements regulations?