Decision in Kolbe!

[Mr H]

see p 12

 

[fightinbluhen51]

OK, I can be dumb as a rock. Does anything actually change in Maryland today or does this just play out in another court for x number of years?

The latter...not the former.

Wheels of justice grind slowly.

 

[ar154u]

What level of scrutiny did Blake apply

Punt Scrutiny.

 

[iCoder80]

The latter...not the former.

Wheels of justice grind slowly.

Thanks. Guess I should have listened to my parents and attended law school.

 

[Mr H]

What level of scrutiny did Blake apply

Irrational Baseless??

 

[fightinbluhen51]

Thanks. Guess I should have listened to my parents and attended law school.

The beauty of our system, when it is not perverted by dishonest people, is that it really is written in simple, English. Expanding upon that, once you learn strict, intermediate, and rational basis, everything else is fairly simple from a Constitutional Law & Civil Rights perspective. Text, history, scrutiny.

 

[Gryphon]

Punt Scrutiny.

That's funny, but she will now know that her work will likely be reviewed and scrutinized by he 4th again, and maybe again en banc, and then perhaps the Supremes. Hope she has a good law clerk.

 

[Hattie]

First, a momentous and very important decision fully vindicating Second Amendment rights.

Second, credit, kudos and thanks to all who contributed to bringing this to fruition.

Turning to the opinion itself, it would seem that the discussion about former police being "special," and possibly even the vagueness issue will go away as moot if the assault weapon/magazine prohibitions ultimately are overturned.

As others have observed, that doubtless will take some time.

Mr. Frosh's "sour grapes" notwithstanding, 2-1 is different that 1-2. If he had won by a 2-1 decision, he would promote it as a huge victory. But yes, he doubtless will continue to squander resources on this litigation as long as he feels it advances his personal ambition.

Though it is likely to be mooted in the end (and really has no place in the opinion) the "former police are special" analysis is disappointing. Is there any empirical evidence at all establishing that former police actually are more likely than anyone else to be targeted for violence? It seems like one of those "commonsense" arguments that ultimately turn out to be "untrue truisms" when examined in light of day.

 

[Jaybeez]

Irrational Baseless??

i lol'd

 

[Mr H]

I do what I can.

 

[press1280]

frosh statement

http://www.oag.state.md.us/Press/2016/020416.htm

I wouldn't celebrate ANYTHING yet. This can very easily go to en banc and we'll likely lose there.
Frosh has basically said they're appealing, although if rejected for en banc I'm not sure they'd actually try SCOTUS.

 

[gungate]

Was this the same court that gave us shall issue CCW that I have yet to see?

 

[Bourbonstamps]

Was this the same court that gave us shall issue CCW that I have yet to see?

no its the one that nullified a reasonable lower court's decision

the decenting judge here was part of that

 

[platoonDaddy]

Impallaria, has a few bullets

From: Delegate Rick Impallaria <Rick.Impallaria@house.state.md.us>
Date: 02/04/2016 16:40 (GMT-05:00)
Subject: Federal Court Upholds Second Amendment



Fourth District U. S. Court of Appeals Affirms Second Amendment Rights

Today, the United States Court of Appeals for the Fourth Circuit issued an opinion in the Kolbe v. Hogan case (formerly Kolbe v. O’Malley), which challenges the Firearm Safety Act (FSA) (SB 281, passed by the O'Malley administration in 2013).

This opinion is a big win for supporters of the Second Amendment.

This highlight list was put together by Del. Wilson and the staff of the House GOP Caucus.

US Court of Appeals for the 4th Circuit
Opinion on Kolbe v. Hogan
Firearms Safety Act (SB281) Challenge

Action: Court vacated the district court’s denial of the Plaintiff’s Second Amendment claims and sent the case back to the district court to apply strict scrutiny.

Court found that FSA does substantially infringe upon the 2nd Amendment.
The court acknowledged the 2nd Amendment Right to individual self-defense.
The court recognized an individual’s right to self-defense in the home.
The court acknowledged that AR15’s (and similar rifles) and 10+ round clips are commonly possessed weapons.
Rejected the state’s argument that magazines are not covered by the 2nd Amendment
Stated that Maryland is trying to circumvent the law by prohibiting independent components.
Rejected the state’s “dangerous” argument.
Found the ban on magazines and rifles substantially burdens the fundamental rights of citizens.
Cited legitimate and lawful reasons for citizens to prefer semi-automatic rifles.
Found the law substantially burdens the right to arm oneself at home.

Notable Quotes from the opinion:

“First, the FSA’s ban on semi-automatic rifles and larger-capacity magazines burdens the availability and use of a class of arms for self-defense in the home, where the protection afforded by the Second Amendment is at its greatest.”

“Second, we conclude that the challenged provisions of the FSA substantially burden this fundamental right. The burden imposed in this case is not merely incidental. Maryland law imposes a complete ban on the possession by law-abiding citizens of AR-15 style rifles—the most popular class of centerfire semi-automatic rifles in the United States. As we explained in Section III.A., these weapons are protected under the Second Amendment.”

“We therefore struggle to see how Maryland’s law would not substantially burden the core Second Amendment right to defend oneself and one’s family in the home with a firearm that is commonly possessed by law-abiding citizens for such lawful purposes.”

“Moreover, the FSA also reaches every instance where an AR-15 platform semi-automatic rifle or LCM might be preferable to handguns or bolt-action rifles--for example hunting, recreational shooting, or competitive marksmanship events, all of which are lawful purposes protected by the Constitution.”

“As Judge Kavanaugh noted in dissent in Heller II, prohibiting this group of weapons might be ‘equivalent to a ban on a category of speech’.”

“Contrary to the district court’s conclusion, the fact that handguns, bolt-action and other manually-loaded long guns, and, as noted earlier, a few semi-automatic rifles are still available for self-defense does not mitigate this burden.”

 

[BeoBill]

It ain’t over yet, but with a change in Governorship and Frosh needing to defend it after his buddy and FSA 2013 progenitor Martin Owe’Malley’s less-than-1% showing in Iowa, there is probably little political support to move forward in throwing good MD taxpayer money after bad defending an unconstitutional law ... JMHO, However ...

Frosh might attempt to save face after promoting MD's guns laws as a model to his fellow AGs, not to mention Spinny Vinnie, who is probably downing Malox by the quart right about now, planning on a state wide media tour trying to sway the court.

Right. I haven't read them this time, but check out all the people on Frosh's Facebook who agree with him.

Interesting thought.



Yeah Frosh can lick my boots. No one cares what he wants. He is going to waste tax dollars on his personal agenda. We need to figure out how to get him out of office, next time he is up to bat.

My favorite part:

"Our distinguished dissenting colleague asserts that we have imprudently and
unnecessarily broken with our sister courts of appeal and infers that we
will bear some responsibility for future mass shootings. In our view,
inferences of this nature have no place in judicial opinions and we will not
respond beyond noting this. The meaning of the Constitution does not depend
on a popular vote of the circuits and it is neither improper nor imprudent
for us to disagree with the other circuits addressing this issue. We are not
a rubber stamp. We require strict scrutiny here not because it aligns with
our personal policy preferences but because we believe it is compelled by
the law set out in Heller and Chester."

This, in a nutshell, is the issue since Heller. Like it or not, firearm ownership is protected by the Bill of Rights. It is also a heavy shot at the dissenting judge. They are questioning his temperament and ability to apply the law in an even handed manner.

Correct. All the Circuit did here was tell the District that they applied the wrong standard, the reasons why, and the standard they need to use.

It is theoretically possible the District could still rule against us, but the wording of this decision makes it nearly impossible to see how.

I wouldn't celebrate ANYTHING yet. This can very easily go to en banc and we'll likely lose there.
Frosh has basically said they're appealing, although if rejected for en banc I'm not sure they'd actually try SCOTUS.

And I'm sure that the "FSA2013 Promoters" will fervently back Frosh in his quixotic efforts to reverse the remanded decision. Thereby wasting gobs of tax money. This, IMO, a tack we SHOULD be taking, along with his continued attempts to nullify our Civil Right to self defense (both in and out of the home).

Then how is a Beretta ARX a "copycat" of an AR-15? Not arguing with you, but if MSP can call an ARX a copy of an AR-15 then you can call me a copy of a sunflower.

On a more practical and immediate level, if the decision is overturned at the District level, will the MSP LD continue to blatantly ignore the law as they have been with Woolard and Heller? Can they get away with it indefinitely?

 

[bshedwick]

Very interersting....

 

[fabsroman]

You raise a good point - it's just one of those things where I think sometimes we have to be mindful and prudent that the anti's, in an effort to get to know their enemy, read and monitor these sites, that's all.

Personally, I'm pretty happy about how this has turned out - we thought that Kolbe was going to languish forever in court limbo, but we got one to come back in our favor, so it's definitely a win to be happy about.

The antis are not our "enemy". They are fellow citizens that just do not understand firearms, criminals, intrusive government, etc. like we do. They just do not understand. It is our job to educate them and explain how most governments do not become tyranical overnight. How crime does not just explode over night. How civil liberties are eroded little by little over time, such that as other evils grow, there is nothing left for the citizens to protect themselves from evil.

As far as I am concerned, this is a huge opinion. There is nothing higher than strict scrutiny as a standard of review. Of course, laws can still pass muster under the strict scrutiny standard, but they really, really, really have to prove that they are necessary.

The only way this strict scrutiny standard can get changed now is if the case is heard en banc or this matter makes it to SCOTUS and SCOTUS decides intermediate scrutiny is appropriate.

For everybody complaining about how long this is going to take, such is life. Everybody involved with this has been saying that it will take years. This was being said on 10/1/2013, and it has indeed taken years. It might reach the 3 year anniversary of the bill going into effect before we have another opinion from Judge Blake.

This process is not for the here and now, but for our future generations. For our kids, our grandkids, etc. I was fortunate enough to buy enough lowers to cover my kids for the foreseeable future, but not everybody was that fortunate. I am doing the same thing with NFA items right now. I would prefer that our children, and our children's children, do not have to worry about this stuff because the laws do not infringe on their right to own firearms.

Heller was not a quick process. McDonalds was not a quick process. This will not be a quick process. The most important thing is that the ultimate outcome is in our favor.

 

[ELEMENT94]

Judges of the Fourth Circuit

http://www.ca4.uscourts.gov/judges/judges-of-the-court

 

[iH8DemLibz]

Now where did I put those VooDoo ultra light pencil barrels and that crate of 30 round magazines?

 

[esqappellate]

Haven't had a chance to read the decision, so am speculating, but if no en banc petition, or petition for cert (doubtful it would be granted IMO anyway) is filed, and the case goes back down on remand, I can't imagine Judge Blake would entertain another round of motions for injunctive relief. Even if she did I would expect they would be denied. Just think about the passage of time with no obvious harm. Anyway, that was already handled the first time through and denied. I suspect all Blake will do is set a supplemental briefing schedule given the 4th's determination that SS applies (to focus the arguments) and have another hearing for oral argument, and issue another summary judgment decision. I can't imagine Judge Blake would open the door to more evidence at this juncture. And even if she did what is the State going to show? That FSA 2013 reduced crime? That it stopped the use of the banned weapons in crimes? That the ban on magazines prevented rioting and 340+ murders? They have to show its narrowly tailored.

She has to reopen the record. The opinion says as much: "The State should be afforded the opportunity to develop its case in light of this more demanding standard, and Plaintiffs should be permitted to do so as well. In doing so, the parties may look to “a wide range of sources, such as legislative text and history, empirical evidence, case law, and common sense, as circumstances and context require.” Carter I, 669 F.3d at 418." page 46