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Kolbe et al v. Hogan (CA4 Disposition)


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#1 skinnyb82

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Posted 04 February 2016 - 11:16 AM

It's about time. CA4 dumped the Maryland FSA, we have a bona fide circuit split (hope for no en banc). Traxler didn't mince words in the majority opinion. I'll edit this post when I get near a computer to copy/paste sections of the opinion but most striking is the mandate itself. Introductory paragraphs.... " TRAXLER, Chief Judge, wrote the opinion for the court as to Parts I, II, and III, in which Judge Agee joined. 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. Plaintiffs raise a number of challenges to the FSA, contending that the “assault weapons” ban trenches upon the core Second Amendment right to keep firearms in defense of hearth and home, that the FSA’s ban of certain larger-capacity detachable magazines (“LCMs”) likewise violates the Second Amendment, that the exception to the ban for retired officers violates the Equal Protection Clause, and that the FSA is void for vagueness to the extent that it prohibits possession of “copies” of the specifically identified semi-automatic rifles banned by the FSA. The district court rejected Plaintiffs’ Second Amendment challenges, concluding that the “assault weapons” and larger-capacity magazine bans passed constitutional muster under intermediate scrutiny review. The district court also denied Plaintiffs’ equal protection and vagueness claims. In our view, Maryland law implicates the core protection of the Second Amendment—“the right of law-abiding responsible citizens to use arms in defense of hearth and home,” District of Columbia v. Heller, 554 U.S. 570, 635 (2008), and we are compelled by Heller and McDonald v. City of Chicago, 561 U.S. 742 (2010), as well as our own precedent in the wake of these decisions, to conclude that the burden is substantial and strict scrutiny is the applicable standard of review for Plaintiffs’ Second Amendment claim. Thus, the panel vacates the district court’s denial of Plaintiffs’ Second Amendment claims and remands for the district court to apply strict scrutiny. The panel affirms the district court’s denial of Plaintiffs’ Equal Protection challenge to the statutory exception allowing retired law enforcement officers to possess prohibited semi-automatic rifles. And, the panel affirms the district court’s conclusion that the term “copies” as used by the FSA is not unconstitutionally vague." Remanded with instructions to apply strict scrutiny hahaha Sent from my VK700 using Tapatalk
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#2 chislinger

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Posted 04 February 2016 - 11:26 AM

Fantastic news!

Edited by chislinger, 04 February 2016 - 11:29 AM.

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#3 Hap

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Posted 04 February 2016 - 11:22 AM

Hallelujah.

 

About time.


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#4 lockman

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Posted 04 February 2016 - 11:46 AM

I don't like the idea that an ex-government employee is granted more rights than anyone else.


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#5 TRJ

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Posted 04 February 2016 - 11:42 AM

That's encouraging news.

#6 Hap

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Posted 04 February 2016 - 11:43 AM

Here's the opinion, grabbed from Michel Lawyers:

Attached File  Kolbe-v.-Hogan_Opinion.pdf   278.38KB   143 downloads


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#7 defaultdotxbe

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Posted 04 February 2016 - 11:51 AM

I don't like the idea that an ex-government employee is granted more rights than anyone else.

I don't either, but with LEOSA on the books that's a big can of worms for a court to open

Not that I'm opposed to national reciprocity, but with all the backlash against SCOTUS for "unpopular" decisions I don't blame the court for not wanting to rock the boat

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#8 Druid

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Posted 04 February 2016 - 11:55 AM

Awesome!!!  :drool:



#9 skinnyb82

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Posted 04 February 2016 - 12:06 PM

I love this passage haha "The State’s novel “unusually dangerous” standard reads too much into Heller. As best we can tell, no statute or case has mentioned, much less adopted, the State’s newly proffered standard. " Sent from my VK700 using Tapatalk
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#10 Hap

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Posted 04 February 2016 - 12:18 PM

Watch MD amend the law to replace "unusually dangerous" by "dangerously unusual" and start the whole process over again.


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#11 Hap

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Posted 04 February 2016 - 12:23 PM

See pages 41-43 of the decision for CA4's shredding of CA7's decision in Friedman, and the following pages for similar treatment of other cases.


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#12 Davey

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Posted 04 February 2016 - 01:17 PM

STRICT! Unf.

#13 ChicagoRonin70

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Posted 04 February 2016 - 02:41 PM

The whole "dangerous and unusual" aspect is, in a historical context, complete and utter nonsense, since back in the days of the Revolutionary War, privately owned cannons, swivel guns, ships with multiple cannons to protect against piracy, and other literal weapons of war were not unheard of. Only monetary limitations prevented more people from owning them, and often both the U.S. government and state governments would issue letters of marque and reprisal to private citizens to act on behalf of the government using their privately owned weapons of war. That was, in fact, the very definition of what the militia was intended to encompass.

 

Nowhere in any of the "founding documents" that this country's laws are based upon is there written anything about limiting individual ownership of weapons of any sort, but what IS written is that there are mechanisms to prevent the keeping of standing armies by various levels of government.

 

If the "unusual" aspect is applied to other Constitutional rights, then any new technology that changes how information is transmitted would be, by definition illegal since it would be a form that had never before existed and is not in common use. The "dangerous" aspect is moot, as well, because by their definition firearms are dangerous to those they are being used against, and can be dangerous to the users if employed improperly.

 

So, in the intended essence of the Constitution, "dangerous and unusual" is specious, and has no standing in what the Founding Fathers intended.


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#14 ChicagoRonin70

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Posted 04 February 2016 - 03:01 PM

This part here is particularly tasty, on the subject of apparent "dangerousness":

 

Friedman also concludes that the “dangerousness” of the regulated weapons should not be decisive, Friedman, 784 F.3d at 409, but nevertheless dismisses the self-defense-related benefits of those same weapons because they “can fire more shots, faster, and thus can be more dangerous in aggregate,” id. at 411. And it recognizes that the restriction must be supported by some genuine state interest, but then finds such an interest in the fact that bans might “reduce[] the perceived risk from a mass shooting.” Id. at 412 (emphasis added). In other words, under the Seventh Circuit’s view, a significant restriction on a fundamental right might be justified by benefits that are quite literally imagined into existence. Needless to say, we see much to question in the Seventh Circuit’s decision.
 


Edited by ChicagoRonin70, 04 February 2016 - 03:02 PM.

“One can never underestimate the idiocy of those determined to be offended by things that don't affect their real lives in the slightest.” —Me
 
“Hatred is the sharpest sword; the desire for peace is armor made of willow leaves in the face of an enemy who despises you, as neither alone will stop a strike that is aimed at your neck.” —Samurai proverb
 
“An armed society is a polite society. Manners are good when one may have to back up his acts with his life.” —Robert Heinlein
 
“I reserve the right to take any action necessary to maintain the equilibrium in which I've chosen to exist.” —Me
 
"It ain't braggin' if you done it." —Will Rogers

 

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#15 johnsxdm

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Posted 04 February 2016 - 03:18 PM

I find this little passage the best,

Our distinguished dissenting colleague asserts that we have imprudently and unnecessarily broken with our sister courts of appeal and infers that we will bear some responsibility for future mass shootings. In our view, inferences of this nature have no place in judicial opinions and we will not respond beyond noting this. The meaning of the Constitution does not depend on a popular vote of the circuits and it is neither improper nor imprudent for us to disagree with the other circuits addressing this issue. We are not a rubber stamp. We require strict scrutiny here not because it aligns with our personal policy preferences but because we believe it is compelled by the law set out in Heller and Chester.

#16 ChicagoRonin70

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Posted 04 February 2016 - 03:41 PM

I find this little passage the best,

Our distinguished dissenting colleague asserts that we have imprudently and unnecessarily broken with our sister courts of appeal and infers that we will bear some responsibility for future mass shootings. In our view, inferences of this nature have no place in judicial opinions and we will not respond beyond noting this. The meaning of the Constitution does not depend on a popular vote of the circuits and it is neither improper nor imprudent for us to disagree with the other circuits addressing this issue. We are not a rubber stamp. We require strict scrutiny here not because it aligns with our personal policy preferences but because we believe it is compelled by the law set out in Heller and Chester.

 

Wow, the dissenters have pretty much been shown to be huge crybabies pointing fingers and saying, "When people do bad things, you'll be sooooo sorry! You'll see!"


“One can never underestimate the idiocy of those determined to be offended by things that don't affect their real lives in the slightest.” —Me
 
“Hatred is the sharpest sword; the desire for peace is armor made of willow leaves in the face of an enemy who despises you, as neither alone will stop a strike that is aimed at your neck.” —Samurai proverb
 
“An armed society is a polite society. Manners are good when one may have to back up his acts with his life.” —Robert Heinlein
 
“I reserve the right to take any action necessary to maintain the equilibrium in which I've chosen to exist.” —Me
 
"It ain't braggin' if you done it." —Will Rogers

 

Gb1XExdm.jpg
 
 

 
 
 
 


#17 ChicagoRonin70

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Posted 04 February 2016 - 03:46 PM

Incidentally, I did find certain things that the majority in this decision wrote were pretty incorrect about:

 

Indeed, perhaps except for military personnel, police officers likely have more experience with a firearm than any other profession in America.

 

Unfortunately, that's not even close to being the case. Tactical security companies have hundreds of times more experience than police officers do, as to firearms instructors, and those who have professional focuses on hunting, not to mention competition shooters, and gunsmiths, and sporting company representatives who deal in firearms, and bodyguards, and . . .

 

The list could go on and on and on. The bottom line is that while some police officers do, in fact, have a great deal of very effective firearms experience, they are the exception to the rule and the average cop has less firearms training and experience than the average dedicated concealed carrier.

 

Also, this . . .

 

Second, because they are granted a “special degree of trust,” O’Donnell v. Barry, 148 F.3d 1126, 1135 (D.C. Cir. 1998), police officers are instilled with what might be called an unusual ethos of public service. “[Police forces] must demand a high level of discipline and duty of their members in order to function effectively for the good of all members of society.” Vorbeck v. Schnicker, 660 F.2d 1260, 1263 (8th Cir. 1981). Officers swear to uphold the law and serve the public from the very start. Indeed, they most often take such an oath on their first day as an officer. Once employed, they agree to “serve mankind,” and “to safeguard lives and property; to protect the innocent against deception; the weak against oppression or intimidation, and the peaceful against violence or disorder.”

 

. . . and . . .

 

For example, a police officer “owe[s] a fiduciary duty to the public to make governmental decisions in the public’s best interests.” United States v. Woodard, 459 F.3d 1078, 1086 (11th Cir. 2006).

 

Well, since the advent of the widespread presence of video cameras among the general public and mandatory squad and body cameras on officers, it's being shown that a sizable majority of police officers are much more likely to offend by number than many demographics of the general population.

 

And this:

 

Likewise, “police have a duty to protect both the lives and the property of citizens.” United States v. Markland, 635 F.2d 174, 176 (2d Cir. 1980).

 

Not according to many court decisions that have held that the police have no such duty whatsoever.


Edited by ChicagoRonin70, 04 February 2016 - 03:52 PM.

“One can never underestimate the idiocy of those determined to be offended by things that don't affect their real lives in the slightest.” —Me
 
“Hatred is the sharpest sword; the desire for peace is armor made of willow leaves in the face of an enemy who despises you, as neither alone will stop a strike that is aimed at your neck.” —Samurai proverb
 
“An armed society is a polite society. Manners are good when one may have to back up his acts with his life.” —Robert Heinlein
 
“I reserve the right to take any action necessary to maintain the equilibrium in which I've chosen to exist.” —Me
 
"It ain't braggin' if you done it." —Will Rogers

 

Gb1XExdm.jpg
 
 

 
 
 
 


#18 GRJY

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Posted 04 February 2016 - 04:18 PM

How long do they have to request en banc hearing?

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#19 Trevis

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Posted 04 February 2016 - 04:24 PM

Well, you can't be perfect. But this is still good news

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#20 kwc

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Posted 04 February 2016 - 04:51 PM

This statement is great as well, linking the 1st and 2nd amendments:

 


In this way, Maryland’s outright ban on LCMs and “assault weapons” is akin to a law that “foreclose[s] an entire medium of expression.”  City of Ladue v. Gilleo, 512 U.S. 43, 55 (1994).  Such laws receive exceptionally rigorous review in the analogous context of the First Amendment, id., and we see no reason for a different method here.


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#21 Hap

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Posted 04 February 2016 - 06:00 PM

Has anyone seen any reaction from the Illinois anti-2A contingent?


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#22 MrTriple

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Posted 04 February 2016 - 06:37 PM

Has anyone seen any reaction from the Illinois anti-2A contingent?


I'd love to, but they have a habit of ignoring 2A cases (good or bad) that aren't in their own turf, whereas we obsess over them.
"The point of [so-called "assault weapon" bans]...is not to ban firearms that are dangerous, it's to ban firearms that gun owners want to own because the people making the laws don't like gun owners. If we want to buy non-semiauto AR-style rifles, they'll ban those too, and for the same reason."

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#23 Hap

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Posted 04 February 2016 - 06:57 PM

I'm willing to bet this decision is not being ignored. Perhaps not discussed in public, but also not ignored.

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#24 Davey

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Posted 04 February 2016 - 07:56 PM

I'm willing to bet this decision is not being ignored. Perhaps not discussed in public, but also not ignored.


The anti 2A shepherds nation wide are very well aware of today's development.

#25 DoverGunner

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Posted 05 February 2016 - 06:43 AM

I want this Judge on the SCOTUS , what are the chances ? Slim I bet



#26 C0untZer0

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Posted 05 February 2016 - 07:29 AM

How long do they have to request en banc hearing? 

 

 

Parties have 14 days after the decision is rendered to file a petition for an en banc hearing.  

 

CA4 rules for filing an en banc review:

 

http://www.ca4.uscou...ringenbanc.html

 

A Sua Sponte request for a rehearing is not so easy to plot a timeline for.  I believe any judge on CA4 has 21 days to request a poll for a Sua Sponte, then the poll is scheduled but there isn't a deadline the court must beat, its up to the Chief Judge to schedule it.  If a majority of Judges vote for a rehearing, then the en back rehearing is scheduled, which could be months and months, no deadline for for how quickly the Sua Sponte rehearing must take place.

 

You can see it gets messy if a CA4 judge requests the en banc.


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#27 defaultdotxbe

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Posted 05 February 2016 - 07:35 AM

Though it looks like if nothing happens within 21 days (no petition from the state, no request from a judge) then there would be no en banc, yes? Would the state appeal to SCOTUS from here, or do they have to wait until the district court issues the new ruling then appeal back to the CA4 first? Sent from my SM-G920P using Tapatalk

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#28 TRJ

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Posted 05 February 2016 - 07:34 AM

Even if it went en banc that should still be a positive, if delayed outcome, no? Isn't CA4 the most conservative leaning of the bunch?

#29 Druid

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Posted 05 February 2016 - 07:51 AM

Would the state appeal to SCOTUS from here, or do they have to wait until the district court issues the new ruling then appeal back to the CA4 first?

The latter. 



#30 skinnyb82

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Posted 05 February 2016 - 10:39 AM

Traxler's opinion, joined by Agee, didn't issue a declaration of unconstitutionality. The only the that the majority said is that intermediate scrutiny is the improper standard of review and kicked it back down to Judge Blake. Odds of this going to en banc are nil. SCOTUS, yeah, sometime. Maybe after the case is reheard by the district, ruling appealed, etc. The MD AG has a serious problem on his hands due to the mandate's instructions to apply strict scrutiny. This would've been much easier (for him, anti-gunners) had the FSA been straight up declared unconstitutional. That's why I doubt that en banc will be granted. The way the panel analyzed and disposed of the case presents issues for any subsequent appeal. I should note that the district court must abide by the mandate. This is gonna take a while. My personal belief is that en banc will not be granted and cert might will be denied because (contrary to the title of the thread...stupid me), no final judgment has been entered. The panel was unable or unwilling to rule on the constitutionality of the law. Only the stands of review (and equal protection claims). The Circuit only said "you have to apply strict scrutiny" rather than "this is unconstitutional...." Blake can drag her feet on remand since she had no interest in actually doing her job when this case was summarily ruled on without consideration of....facts. Sent from my VK700 using Tapatalk

Edited by skinnyb82, 05 February 2016 - 10:46 AM.

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