STEPHEN V. KOLBE v. LAWRENCE J. HOGAN, JR.
US Court of Appeals for the Fourth Circuit, Traxler, Filed Feb. 4, 2016,
Second Amendment – Firearms – Strict Scrutiny is the proper standard by which to measure firearm restrictions that implicate the “core” of the Second Amendment within the home
Vacated by en banc opinion
Second Amendment – the right to possess firearms for protection implies a corresponding right to possess component parts necessary to make the firearms operable
Second Amendment – A weapon is outside coverage of the Second Amendment if it is both “dangerous” and “unusual”, in that it is not “commonly possessed for lawful purpose”
(see below regarding “typically” vs “commonly”)
Equal Protection – Retired police are not the same as ordinary citizens w/regard to semi-automatic rifles and larger-capacity magazines in that they: have unique training and experience related to firearms, special degree of trust, face special threats that private citizens do not,
Vagueness – FSA’s prohibition regarding “copies” is not constitutionally vague
Vagueness – Standard for constitutional vagueness is not “no set of circumstances” under which the Act would be valid; need only have a “legitimate sweep” identifying a core of prohibited conduct
Commentary:
In April 2013, Maryland passed the Firearm Safety Act (“FSA”), which, among other things, bans law-abiding citizens, with the exception of retired law enforcement officers, from possessing the vast majority of semi-automatic rifles commonly kept by several million American citizens for defending their families and homes and other lawful purposes.
Well, that kinda gives away the Court’s perspective on the issue…
The USSC in Heller held that the Second Amendment guarantees “the individual right to possess and carry [bearable] weapons in case of confrontation” but noted “the Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes, such as short-barreled shotguns”
The 4th circuit has adopted a 2-part approach to resolving Second Amendment challenges:
1) does the law burden conduct falling within the Second Amendment’s scope
2) if so, apply means-end scrutiny
The 4th Circuit here slightly shifts the USSC reading of the 2nd Amendment.
In analyzing whether ARs are covered by the Second Amendment, it asks “whether semi-automatic rifles and LCMs are commonly possessed by law-abiding citizens for lawful purposes.”
The difference between “typically possessed” and “commonly possessed” is both one of type and one of degree.
“Typically” refers to the standard manner in which something is possessed. One “typically” uses the dishwasher to wash dishes.
“Commonly” refers to a not-insignificant frequency of occurrence. In certain communities, a dishwasher is not used to wash dishes; it is merely used as a built-in drying rack. Therefore you “commonly” don’t use the dishwasher to wash dishes.
It probably doesn’t matter in the final calculus for this case, since semi-automatic rifles are both typically used lawfully and commonly used lawfully. However, the shift might make a difference in the future.
For perspective, we note that in 2012, the number of AR-and AK-style weapons manufactured and imported into the United States was more than double the number of Ford F-150 trucks sold, the most commonly sold vehicle in the United States.
In all fairness, people that like guns tend to collect a significant number of them while people that drive pickups tend to just have a single pickup. Still, that made me blink.