Kolbe v. Hogan: Hewing to Heller and Taking Aim at a Standard of Strict Scrutiny for Comprehensive Firearms Legislation

Brett S. Turlington

In Kolbe v. Hogan, the United States Court of Appeals for the Fourth Circuit considered whether Maryland's Firearm Safety Act infringes upon the right to keep and bear arms under the Second Amendment.  The Fourth Circuit held that the Firearm Safety Act's assault weapon and large-capacity magazine bans implicate the protections guaranteed by the Second Amendment, and therefore these bans should be analyzed under a standard of strict scrutiny.  The court reached the correct conclusion in this case, in part because it properly construed the "dangerous and unusual" language from District of Columbia v. Heller  that had been either misunderstood or misapplied by other courts.  Heller limited the right to keep and bear arms to weapons "in common use at the time," as supported by the historical  tradition of banning dangerous and unusual weapons.  As explained in Kolbe, Heller did not intend the "dangerous and unusual" language to act as an independent limitation on the right to keep and bear arms, despite recent decisions from other circuits.  Furthermore, the court reached the correct judgment because it reasoned that sweeping assault weapon and large-capacity magazine bans, like the Firearm Safety Act, demand strict scrutiny.  Such bans indiscriminately interfere with the core lawful purpose of the Second Amendment, namely protecting the possession of firearms for self-defense within the home.  Other United States courts of appeals have applied intermediate scrutiny to similar laws, which means Kolbe created a circuit split.  The cogent and compelling reasoning of the Fourth Circuit in favor of applying strict scrutiny to broad firearm bans might produce similar decisions in other circuits and, ultimately, spur the Supreme Court of the United States to resolve the circuit split.  On remand, if the United States District Court for the District of Maryland applies strict scrutiny and finds the Firearm Safety Act unconstitutional, state legislatures within the Fourth Circuit will need to carefully craft future firearms legislation to afford greater protection to the right to keep and bear arms.