Firearms Regulation

Kolbe v. Hogan, 813 F.3d 160 (4th Cir. 2016) reh'g en banc granted, No. 14-1945, 2016 WL 851670 (4th Cir. Mar. 4, 2016) 

Claims that a state regulation of the possession and use of firearms violates the Second Amendment must pass a “strict scrutiny” review. [Editor Note: This case does not discuss mental illness, but it appears that the standard would apply to firearms restrictions on persons with mental illness.]

Background: The Firearm Safety Act ([FSA] passed by Maryland in 2013) banned even law-abiding citizens, except for retired law enforcement officers, from buying or possessing most kinds of semi-automatic rifles. Plaintiffs challenged several provisions of the FSA on the theory that its restrictions on “assault weapons” and larger-capacity detachable magazines (LCMs) entrenched upon core Second Amendment rights. Further, plaintiffs alleged that the exception for retired law enforcement officers violated the Equal Protection Clause. The district court upheld the constitutionality of the FSA under the intermediate scrutiny standard and denied the plaintiffs’ Equal Protection claims.

Holding: On appeal, the Fourth Circuit held that Maryland’s FSA implicated “the core protection of the Second Amendment” as articulated in District of Columbia v. Heller, 554 U.S. 570 (2010). Because the Fourth Circuit found that the FSA placed a substantial burden on a core constitutional right, it vacated the lower court opinion and announced strict scrutiny as the applicable standard for review of the plaintiffs’ Second Amendment Claims. The Fourth Circuit affirmed the denial of the plaintiffs’ Equal Protection challenge, as well as the lower court’s finding that the FSA was not unconstitutionally vague.

Notable Points:

Strict scrutiny is the proper standard for challenging firearm restrictions under the Second Amendment: The lower court erred in applying intermediate scrutiny to the challenged firearm restriction. Strict scrutiny is the proper standard because the FSA ban on semi-automatic rifles and larger-capacity magazines restricts the availability of a class of arms used for “self-defense in the home.” That restriction implicates the “core” of the Second Amendment. Because the challenged provisions of the FSA substantially, rather than incidentally, burden that core right, strict scrutiny, rather than intermediate scrutiny, is the proper standard.

The FSA’s exception for retired law enforcement officers did not violate the Equal Protection Clause: Because retired police officers were not similarly situated with the public at large under the FSA, the grant of certain rights to those retired officers did not violate the Equal Protection Clause. Specifically, the court found that retired police officers (1) possess unique training and experience related to firearms and (2) are granted a “special degree of trust” that instills them with “an unusual ethos of public service.” These two factors make them not similarly situated with the public at large for Equal Protection purposes, and justify the exceptions and special provisions available to them under the FSA.

Found in DMHL Volume 35, Issue 1