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Crime and Punishment

Breaking: Fourth Circuit Court of Appeals Affirms Maryland's Second Amendment Rights

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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 challenged the Firearm Safety Act (FSA) (SB 281, rammed through by the O'Malley administration in 2013). 

Essentially the 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. 

Highlights:

• 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.”

The full opinion can be found at:  http://michellawyers.com/wp-content/uploads/2013/10/Kolbe-v.-Hogan_Opinion.pdf


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" Nothing in the world is more flexible and yielding than water. Yet when it attacks the firm and the strong, none can withstand it, because they have no way to change it. So the flexible overcome the adamant, the yielding overcome the forceful. Everyone knows this, but no one can do it. "

--Lao Tzu

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