Should they choose to accept the challenge, the SCOTUS is poised to make a definitive statement in support of our inalienable right to keep and bear arms.
The justices are set to meet Thursday to discuss pending petitions for review. One case they’re considering for the docket is Kolbe v. Hogan.
In that case, the Fourth Circuit Court of Appeals upheld a ban in the State of Maryland on semiautomatic rifles and detachable magazines over ten rounds. It was the fourth court to uphold the constitutionality of a so-called “assault weapons” ban. Previously, the Second, Seventh and DC Circuit courts upheld similar bans.
To date, SCOTUS has deferred, reluctant to get involved.
But The Federalist’s Margot Cleveland thinks the Supreme Court might be willing to take the case this time around. Here’s why:
While the four circuit courts that have considered the constitutionality of bans on “assault” weapons and large-capacity magazines have all upheld the gun-control legislation, in doing so they have adopted three different standards for judging the constitutionality of the laws under the Second Amendment and the Supreme Court’s Heller decision.
In the Second and DC Circuit courts, they concluded that Second Amendment protections did extend to semi-autos and high-capacity magazines. But because banning them does “not seriously impact a person’s ability to defend himself in the home,” the appellate courts held that the appropriate question for them to consider is whether the government established a substantial relationship between the prohibition and an important state interest.
In the law, the “substantial relationship” with “an important state interest” standard is called “intermediate scrutiny.” The Second Circuit and D.C. Circuit then both concluded that the laws at issue satisfied intermediate scrutiny and thus upheld the bans.
On the other hand, the Seventh Circuit had a different test, deciding that “instead of trying to decide what ‘level’ of scrutiny applies, and how it works,” it is more suitable “to ask whether a regulation bans weapons that were common at the time of ratification or those that have some reasonable relationship to the preservation or efficiency of a well-regulated militia, and whether law-abiding citizens retain adequate means of self-defense.”
So in that case, the Seventh Circuit upheld the constitutionality of a ban.
But rather than follow the lead of its sister circuits, the en banc court in Kolbe forged a third path: The majority opinion concluded “that the banned assault weapons and large-capacity magazines are not constitutionally protected arms.”
The Fourth Circuit reached this conclusion by first noting that the Heller Supreme Court recognized that the Second Amendment guarantee “extends only to certain types of weapons” and that “weapons that are most useful in military service – M-16 rifles and the like – may be banned” without infringing Second Amendment rights. The majority then concluded that the AR-15 and semiautomatic AK47 and other banned “assault” weapons and large-capacity magazines are “like” M-16 rifles, and therefore “they are among those arms that the Second Amendment does not shield.”
So the Fourth Circuit equated semi-automatic rifles with a fully automatic M-16s; that, despite the fact that the two kinds of firearms only appear similar cosmetically, not in functionality.
The differing standards among the circuit courts may be enough to justify a hearing before SCOTUS, and likely a summary vacation of the decision (with Gorsuch on the Court now).
But the bigger question that the Supreme Court needs to clear up: Do semiautomatic weapons – or “assault weapons” as liberals like to call them – stand up under Heller? Justice Clarence Thomas thinks so:
“Should the Supreme Court grant the petition for review, as I predict, gun-rights activists should temper any premature celebration. Public pressure to uphold “assault” weapon and high-capacity magazine bans will be great, and as Justice Thomas stressed: “If a broad ban on firearms can be upheld based on conjecture that the public might feel safer (while being no safer at all), then the Second Amendment guarantees nothing.”
Needless to say, we will be watching this case very closely. The fate of America’s most popular defensive rifle may be decided by SCOTUS before long.