Fourth Circuit Requires “Strict Scrutiny” for Maryland Gun and Magazine Ban

It hasn’t been a good week for Martin O’Malley, former governor of Maryland, would-be contender for President of the United States, and staunch gun control advocate.

As we report elsewhere, O’Malley was finally forced to drop out of the Democratic primary on Tuesday after failing to garner even a single delegate at the Iowa Caucus.

Then, on Thursday, a divided panel of the U.S. Court of Appeals for the Fourth Circuit issued an opinion that may spell doom for O’Malley’s signature legislative “achievement” as governor, the so-called Firearm Safety Act of 2013 (FSA). This act ushered in a long list of onerous gun control measures, but its centerpiece is a broad ban on popular semiautomatic rifles, as well as magazines with a capacity of greater than 10 rounds.

During the presidential campaign, O’Malley often touted enactment of the FSA as an example of his “leadership.” That’s what O’Malley calls jamming a divisive, partisan, and ineffectual law down the throats of his constituents, one that may now collapse under the weight of its own unconstitutionality. No wonder the caucus voters stayed away from him in droves.

On the other hand, the Fourth Circuit’s opinion in the case, Kolbe v. Hogan, is positive news for Second Amendment advocates. While the appellate court did not directly invalidate the challenged “assault weapon” and magazine bans, it faulted the lower court for its dismissive “intermediate scrutiny” analysis and returned the case for reconsideration under “strict scrutiny,” the most demanding test in constitutional law. Dissenting Judge Robert B. King, a Bill Clinton appointee, explains the significance of this decision by lamenting, “I fear … the panel majority has guaranteed the demise of the FSA ….”

Only time will tell if that’s true. For now, however, the majority decision contains a number of very significant findings of fact and conclusions of law that strongly reinforce the protections of the Second Amendment in the Fourth Circuit. It also creates the potential for a circuit split with other judicial circuits that have upheld semi-auto bans and/or magazine capacity limits. This could increase the odds that the U.S. Supreme Court will take up the issue of semi-auto and magazine bans and determine a rule applicable to the entire country.

In contrast to the majority’s rational and sober opinion on the Second Amendment claim, Judge King’s dissent features the sort of hyperbole and emotionalism typically associated with the gun control movement, in addition to patent errors of fact and law. “Let’s be real,” he scolds, “The assault weapons banned by Maryland’s FSA are exceptionally lethal weapons of war.” He also earns an unusual rebuke from the majority for his thinly-disguised suggestion that they could end up with blood on their hands by setting the stage for further mass shootings. “[I]nferences of this nature have no place in judicial opinions,” the majority retorts, “and we will not respond beyond noting this.” Echoing a scene from the Tom Cruise film “A Few Good Men,” Judge King signs off by dramatically noting, “I wholeheartedly dissent.”

While the saga of the FSA is far from over and the law’s ultimate fate still undetermined, the panel’s decision is a significant step forward for continued judicial recognition of the Second Amendment. It’s also a timely and poignant reminder of the need to elect a president who will both respect the right to keep and bear arms and appoint judges who will resolve cases based on the dictates of the Constitution and not on their own emotional reactions to hot-button issues they don’t understand.