Kolbe v. O’Malley — Amicus brief

Michael Harless Firearms Law, U. S. Court of Appeals, Fourth Circuit

Ever since the U.S. Supreme Court determined that the Second Amendment protected every citizen’s right to “keep and bear arms” in its 2008 Heller decision, lower federal courts have sought to evade the application of that rule. That pattern is now continuing in Maryland where a district judge has upheld the Maryland 2013 Firearms Safety Act (“Act”) which bans (i) so-called “assault weapons” and (ii) so-called “large-capacity magazines” that hold more than 10 rounds of ammunition.

Our firm filed an amicus curiae brief in the U.S. Court of Appeals for the Fourth Circuit, in support of a challenge to that ruling.

This case is truly remarkable because the district judge first acknowledged that the Maryland Act was an “infringement” on Second Amendment rights, but upheld the law anyway, in utter disregard of the Second Amendment text commanding that those rights “shall not be infringed.”

Our brief first attacked the many factual errors in the district judge’s opinion which formed the basis for her flawed legal analysis. Judge Blake sought to demonize the regulated firearms and magazines, relying on demonstrably false claims that revealed animus towards firearms.

In Heller, the Supreme Court had held the District of Columbia could not ban weapons that are “in common use … for lawful purposes.” Somehow, the district judge came to the conclusion that so-called “assault rifles” like the AR-15 and AK-47 — likely the most popular rifles in the United States — are not in common use. Our brief noted that the judge’s claim that “assault” rifles are not commonly used because they represent only a small percentage of total firearms is like saying Honda Accords are not commonly used because they represent only a small percentage of total cars. Meanwhile, the district judge conveniently failed to address whether so-called “large-capacity magazines,” are in common use, as the government had not even bothered to contest that fact.

Judge Blake then applied “intermediate scrutiny” to the Maryland law, but our brief argued that Second Amendment rights are not to be subject to judicial interest balancing, as Heller teaches.

Finally, our brief demonstrated why the Maryland law’s numerous exemptions, such as those for police and military, must fail. It does not matter if these groups receive special training that ordinary people do not have. Indeed, Heller stated clearly that Second Amendment rights belong to all the People, not just “members of a [government] fighting force.” Permitting certain groups to have these weapons “within the scope of official business” does not lessen the Second Amendment breach; rather it exacerbates it by creating an imbalance of power that threatens the people’s readiness to resist tyranny, the overriding Second Amendment purpose as recognized by the Supreme Court in Heller.

Link to brief