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Maryland's Assault Weapon Ban Deserves Strict Scrutiny, 4th Cir. Rules

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By Jonathan R. Tung, Esq. on February 10, 2016 5:59 AM

In a 2-1 decision, the Fourth Circuit vacated a ruling by a Maryland district court which held that the Firearms Safety Act of 2013 was constitutional under the erroneously applied standard of intermediate review. The case, Kolbe v. Hogan, has been sent back to the lower district court for another round under the more exacting strict scrutiny standard.

This practically ensures that the portion of the law banning assault weapons and large capacity magazines will be found unconstitutional. Compare this result to the recently decided Highland Park decision in the Second Circuit. NRA-ILA and other interested groups have been celebrating the Fourth Circuit's decision.

Martin O'Malley's Pet Act

The Firearm Safety Act of 2013 (FSA) had been the political pride and joy of Martin O'Malley, the governor of Maryland and once contender for the Democratic party nomination. O'Malley had repeatedly alluded to the FSA's enactment as an example of his leadership. But this didn't help him much.

District Applies Intermediate Scrutiny

Since FSA was a law regarding the use of guns, it was only a matter of moments before a suit would be filed. At the district level, the court applied a form of intermediate scrutiny. Under such a standard, the government must prove that the law regulating the prohibited behavior must advance an important government interest. With such wiggly language, the intermediate scrutiny standard was essentially nothing more than a slightly beefed up version of the familiar "rational basis" standard.

But intermediate scrutiny, according to the Fourth Circuit Court, was the incorrect standard. Better, at least to two judges, is strict scrutiny. The majority opinion cited two SCOTUS cases for their reasoning: D.C. v. Heller and McDonald v. Chicago. It also relied on a 3rd Circuit "common use" test eventually adopted by the Fourth Circuit in U.S. v. Chester. Strict scrutiny is the standard typically applied in legal controversies in which a "fundamental right" is regulated by the state. Application of this standard virtually guarantees a win for the plaintiff.

Magazines Are Guns

With regards to high capacity magazines, the circuit dismissed the attorney general's contention that magazines should not be even discussed because they are not weapons. The ubiquity of high capacity magazine, the circuit argued made them "common and standard." That characteristic alone makes them subject to the Second Amendment.

Destined for Supreme Court?

SCOTUS had been trying to punt the issue of whether there is a right to own assault weapons for sometime; and it did it again with Highland Park. Is it only a matter of time before the high court will have no choice but to take on this hot-potato issue?

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