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May 16, 2016 Practice Points

Does the Second Amendment Protect Commonly Owned Assault Weapons?

The Fourth Circuit addresses this question in Kolbe v. Hogan.

John Pierce – May 16, 2016

What types of arms are protected by the Second Amendment? That is a question the circuit courts have struggled with since the landmark holding in District of Columbia v. Heller, 554 U.S. 570 (2008), that the Second Amendment’s protection of “the right of the people to keep and bear Arms … confers an individual right to possess and carry weapons.”

Kolbe v. Hogan, (4th Cir., 2016), is one of the latest cases to explore the issue. At issue in Kolbe was a Maryland law passed in April 2013 that “ban[ned] 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.”

The plaintiffs in Kolbe challenged the law on several grounds including a claim that it “trenches upon the core Second Amendment right to keep firearms in defense of hearth and home.”

In analyzing the question, the Fourth Circuit used an approach similar to that which has been adopted by a number of other circuits. Under this analysis, the court first determines “whether the challenged law imposes a burden on conduct falling within the scope of the Second Amendment’s guarantee.”

Noting that “the conduct being regulated by the [Maryland law] includes an individual’s possession of a firearm in the home for self-defense . . . [and that] [a]ny prohibition or restriction imposed by the government on the exercise of this right in the home clearly implicates conduct protected by the Second Amendment,” the Court then turned to “an additional threshold matter: whether the classes of weapons regulated are commonly used by law-abiding citizens.

This requirement is based upon Heller’s holding that the protections of the Second Amendment only extends to those weapons “typically possessed by law-abiding citizens for lawful purposes.”

In determining whether the particular class of firearms banned by Maryland were commonly used by law-abiding citizens for self-defense, the court stated that “We think it clear enough in the record that semi-automatic rifles and magazines holding more than ten rounds are indeed in ‘common use,’ as the plaintiffs contend. Approximately 1.6 million AR–15s alone have been manufactured since 1986, and in 2007 this one popular model accounted for 5.5 percent of all firearms, and 14.4 percent of all rifles, produced in the U.S. for the domestic market.” They also noted that they are “commonly used for self-defense.”

The court concluded their analysis by holding that “semi-automatic rifles and [magazines for these rifles] are commonly used for lawful purposes, and therefore come within the coverage of the Second Amendment.”

The court remanded the case to the district court for reconsideration noting that the state must satisfy strict scrutiny because the law constitutes a complete ban on ownership in the home and “any law that would burden the ‘fundamental,’ core right of self-defense in the home by a law-abiding citizen would be subject to strict scrutiny.”

Update: Following the decision in Kolbe, the Fourth Circuit agreed to an en banc rehearing of the case with oral arguments scheduled for May 11.

Keywords: Second Amendment, scope of fundamental rights, level of scrutiny

— John Pierce, Bristol, VA

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