4th Cir. Takes Another Shot at Gun Control, Strict Scrutiny

By Casey C. Sullivan, Esq. on March 08, 2016 | Last updated on March 21, 2019

The Fourth Circuit will reconsider a controversial ruling that found a fundamental right to own assault weapons, the court announced last Friday. Just one month ago, a divided Fourth Circuit panel ruled that the possession of firearms was a "fundamental right" under the Second Amendment. As such, laws impinging on that right, here, a Maryland ban on assault weapons and large capacity magazines, must be reviewed under a standard of strict scrutiny.

The ruling was a win for gun rights advocates, but a departure from the conclusions of other circuits. Now, that conclusion is in question as the Fourth prepares to rehear the case en banc.

A Fundamental Right to Assault Weapons?

The case, Kolbe v. Hogan, involves a challenge to the Maryland Firearm Safety Act of 2013, a gun control measure passed in the wake of the Sandy Hook massacre. The law designated certain firearms as assault weapons and banned those weapons, their possession and sale. It wasn't too dissimilar to laws that have withstood challenges in the Second and Seventh Circuits.

But those circuits, along with the district court in Kolbe, evaluated the laws under intermediate scrutiny. Two of the three judges reviewing Maryland's law disagreed. Maryland's assault weapon ban "trenches upon the core Second Amendment rights to keep firearms in defense of hearth and home." Finding a fundamental right to own assault weapons, the court ruled that laws like Maryland's must be evaluated under strict scrutiny -- a standard that's famously "strict in theory, fatal in fact."

The court also rejected the idea that assault weapons and high-capacity magazines were the sort of "dangerous and unusual weapons" that can be prohibited under D.C. v. Heller. Thousands of law abiding citizens possess assault weapons, the court reasoned, and the fact that they are in "common use for lawful purposes" means they are protected by the Second Amendment.

En Banc, Then Up to SCOTUS?

The court's ruling wasn't unanimous, however. Judge Robert B. King issued a blunt dissent:

Let's be real: The assault weapons banned by Maryland's FSA are exceptionally lethal weapons of war. In fact, the most popular of the prohibited semiautomatic rifles, the AR-15, functions almost identically to the military's fully automatic M16.

Will the rest of the Fourth Circuit agree with him? Arguments for the en banc review are scheduled for May 11th.

Depending on how the Fourth Circuit's en banc review turns out, the case could soon be on its way to the High Court. Dahlia Lithwick of Slate thinks this could be the case that finally forces the Supreme Court to address just how far the Second Amendment rights recognized in Heller can stretch.

We'll have to wait until May, and then some, to see.

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