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Thread: Kolbe vs O'Malley (Hogan)

  1. #1
    Activist Member swinokur's Avatar
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    Kolbe vs O'Malley (Hogan)

    Remanded back to the DC with orders to use strict scrutiny.

    A victory but not perfect.

    Action: Court vacated the district court’s denial of the Plaintiff’s Second Amendment claims and sent the case back to the district court to apply strict scrutiny.

    ? Court found that FSA does substantially infringe upon the 2nd Amendment.
    ? The court acknowledged the 2nd Amendment Right to individual self-defense.
    ? The court recognized an individual’s right to self-defense in the home.
    ? The court acknowledged that AR15’s (and similar rifles) and 10+ round clips are commonly possessed weapons.
    ? Rejected the state’s argument that magazines are not covered by the 2nd Amendment ? Stated that Maryland is trying to circumvent the law by prohibiting independent components.
    ? Rejected the state’s “dangerous” argument.
    ? Found the ban on magazines and rifles substantially burdens the fundamental rights of citizens.
    ? Cited legitimate and lawful reasons for citizens to prefer semi-automatic rifles.
    ? Found the law substantially burdens the right to arm oneself at home.

    Notable Quotes from the opinion:

    “First, the FSA’s ban on semi-automatic rifles and larger-capacity magazines burdens the availability and use of a class of arms for self-defense in the home, where the protection afforded by the Second Amendment is at its greatest.”

    “Second, we conclude that the challenged provisions of the FSA substantially burden this fundamental right. The burden imposed in this case is not merely incidental. Maryland law imposes a complete ban on the possession by law-abiding citizens of AR-15 style rifles—the most popular class of centerfire semi-automatic rifles in the United States. As we explained in Section III.A., these weapons are protected under the Second Amendment.”

    “We therefore struggle to see how Maryland’s law would not substantially burden the core Second Amendment right to defend oneself and one’s family in the home with a firearm that is commonly possessed by law-abiding citizens for such lawful purposes.”

    “Moreover, the FSA also reaches every instance where an AR-15 platform semi-automatic rifle or LCM might be preferable to handguns or bolt-action rifles--for example hunting, recreational shooting, or competitive marksmanship events, all of which are lawful purposes protected by the Constitution.”

    “As Judge Kavanaugh noted in dissent in Heller II, prohibiting this group of weapons might be ‘equivalent to a ban on a category of speech’.”

    “Contrary to the district court’s conclusion, the fact that handguns, bolt-action and other manually-loaded long guns, and, as noted earlier, a few semi-automatic rifles are still available for self-defense does not mitigate this burden.”
    Last edited by swinokur; 02-04-2016 at 04:46 PM.

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    For those who wish to play this game ...


    Supporters of the law will still not see the light ... 10000 court opinions will not sway them

    For the people asking for the law to be struck down, they're happy. For now.

    But the court sees that allowing one set of people on rules and another a different set of rules is A-OK. Tyranny continues. Even under rule by a King, common law still attached to him ... not here in our republic, so the gov't says.


    Thanks for the post !
    Last edited by davidmcbeth; 02-04-2016 at 04:57 PM.

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    Appeals court rules Md. gun control law infringes on Second Amendment rights

    Might this be the credited attribution for the QUOTE in OP?
    http://www.carrollstandard.com/news/...endment-rights

    http://www.washingtontimes.com/news/...cond-amendmen/

    Thanks for the link URL to the ruling
    Last edited by Nightmare; 02-04-2016 at 07:04 PM.
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    Activist Member swinokur's Avatar
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    The quote in the OP was from an email from a MD Delegate.

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    Quote Originally Posted by swinokur View Post
    The quote in the OP was from an email from a MD Delegate.
    Rick Impellaria.
    I am responsible for my writing, not your understanding of it.

  6. #6
    Activist Member swinokur's Avatar
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    Apologies for the lack of attribution. It didn't seem that important because it was a summary of the ruling.

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    Regular Member Repeater's Avatar
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    Victory at Last? Kolbe v. Hogan

    Although it began as Kolbe v. O'Malley, yesterday was a red-letter day for the RKBA:

    Kolbe v. Hogan: 4th Circuit requires strict scrutiny for Maryland ban on magazines and semiautomatics
    Today the 4th Circuit decided Kolbe v. Hogan, a Second Amendment challenge to a 2013 Maryland arms prohibition statute. The statute bans the sale of firearm magazines that hold more than 10 rounds and also bans many firearms, by labeling them as “assault weapons.” In a 2-1 decision written by Chief Judge Traxler, the Fourth Circuit held that strict scrutiny is the proper standard of review for bans on common arms, such as those at issue in Kolbe. The case was remanded to the district court, which had applied the wrong standard, namely a weak version of intermediate scrutiny. The Maryland attorney general announced that he will seek en banc or Supreme Court reversal of the Kolbe decision.
    Here is the opinion.

    I wonder what happens now, moving forward?

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    Regular Member TFred's Avatar
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    Quote Originally Posted by Repeater View Post
    Although it began as Kolbe v. O'Malley, yesterday was a red-letter day for the RKBA:

    Kolbe v. Hogan: 4th Circuit requires strict scrutiny for Maryland ban on magazines and semiautomatics


    Here is the opinion.

    I wonder what happens now, moving forward?
    Maryland will appeal, to either the whole circuit, or to the SCOTUS.

    They never give up even when they know they will lose. They are hoping to hold out long enough for a Clinton appointee, or 2, or 3, to the Supreme Court, which would destroy the Constitution.

    TFred

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    Campaign Veteran skidmark's Avatar
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    Ever since Heller, MacDonald, and Heller II we have been jumping up and down on thin ice. 5-3 and 2-1 majorities, with a few concurring opinions as opposed to a solid block of 5 is not a real solid foundation on which to claim "victory".

    Either we advance from the current wishy-washiness of the current "I support The Second Amendment" Senate or we run the risk of not even needing a Dem appointee to SCOTUS to see things come crashing down.

    And just remember that if Congress does not like how SCOTUS rules they have the opportunity to write new legislation making the law more to their liking. While at the moment (2016 - 2021) I put the odds of that happening there is nothing on the horizon that looks like it will moderate any attempt to do so, regardless of which party sits in the White House.

    stay safe.
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  10. #10
    Activist Member JamesCanby's Avatar
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    Quote Originally Posted by skidmark View Post
    Ever since Heller, MacDonald, and Heller II we have been jumping up and down on thin ice. 5-3 and 2-1 majorities, with a few concurring opinions as opposed to a solid block of 5 is not a real solid foundation on which to claim "victory".

    Either we advance from the current wishy-washiness of the current "I support The Second Amendment" Senate or we run the risk of not even needing a Dem appointee to SCOTUS to see things come crashing down.

    And just remember that if Congress does not like how SCOTUS rules they have the opportunity to write new legislation making the law more to their liking. While at the moment (2016 - 2021) I put the odds of that happening there is nothing on the horizon that looks like it will moderate any attempt to do so, regardless of which party sits in the White House.

    stay safe.
    While I agree with your somewhat pessimistic (if somewhat realistic) reply, here are what I think the possibilities are:

    MD AG Frosh has already said he will appeal to the SCOTUS, which is a long-range plan, I think -- the SCOTUS calendar is already set and in progress for this SCOTUS term, so it will be a long time before the case is heard, even longer for the ruling -- June or July of 17, if I reckon correctly.

    If the SCOTUS refuses to hear the appeal, then Frosh will most likely request an en banc hearing by the appeals court that rendered the current verdict. If that's refused, then...

    The original district court will be required to re-adjudicate the case, this time using the "strict scrutiny" approach, which according to even the dissenting judge would be fatal to the State's case.

    In any case, I consider the current ruling to be a win, until and unless it is reversed. I'm not going be a Cassandra that moans about possible SCOTUS nominees who are antithetical to 2A rights, but I *AM* going to work hard to get the "right" person nominated and elected in November, just in case...
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  11. #11
    Activist Member swinokur's Avatar
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    In MD Forum. maybe they can be merged?

    http://forum.opencarry.org/forums/sh...81#post2180181

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    Regular Member TFred's Avatar
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    I'm no expert on matters of litigation, hopefully someone who is can answer this question.

    Does "ripeness" come into play here? Since the case has been remanded back to the lower court, do the litigants now have to wait to see what they actually do with the case before they can appeal further?

    Or, can they appeal the decision that SENT it back to the lower courts?

    It seems that since the case was ordered back for a "do-over," so-to-speak, none of the litigants can actually claim any damage at this point, which removes any justification for further appeal.

    Lawyers, please!

    TFred
    Last edited by TFred; 02-06-2016 at 09:41 PM.

  13. #13
    Activist Member swinokur's Avatar
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    IIRC an appellate attorney over on Maryland Shooters says AG Frosh can

    1. Ask for an en banc hearing from the the 4 CA (which he says he will do.)
    2. File a petition for certiorari from SCOTUS.

    Or a single judge can sua sponte ask for en en banc hearing.

    It was encouraging to also hear the 4CA doesn't frequently grant en banc appeals.

    IANAL either

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    People outside the jurisdiction of this court should now go before their local authorities (town meetings, etc) and demand that they no longer enforce gun laws that are on the books that are of a similar nature.

    Make officials say that they do not care .. out them and then boot them out.

  15. #15
    Activist Member swinokur's Avatar
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    An en banc appeal needs to be filed with 2 weeks of the ruling according to some other posts in another forum.

    I have no idea if this is accurate or not..
    Last edited by swinokur; 02-08-2016 at 05:04 PM.

  16. #16
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    Judge William Byrd Traxler, Jr. wrote the majority opinion; appointed to the USDC by Bush, and to the 4th C. Ct. Apps by Clinton. Now chief judge. From S.C.

    I suggest we write in and tell PotUS to nominate him for US Sup Ct position. (without any reference to "gun rights")
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    By the way, nothing I say on this website as "user" should be taken as either advertising for attorney services or legal advice, merely personal opinion. Everyone having a question regarding the application of law to the facts of their situation should seek the advice of an attorney competent in the subject matter of the issues presented and licensed to practice in the relevant state.

  17. #17
    Activist Member swinokur's Avatar
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    En Banc petition filed last night.

    http://forum.opencarry.org/forums/sh...39#post2181739
    Last edited by swinokur; 02-19-2016 at 08:20 PM.

  18. #18
    Regular Member Repeater's Avatar
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    En Banc Granted!

    Is this potentially bad news?

    Federal Court of Appeals to Review Important Gun Rights Decision
    The United States Court of Appeals for the Fourth Circuit announced this afternoon that it has agreed to an en banc re-hearing in Kolbe v. Hogan. As we previously reported, the Fourth Circuit’s earlier decision in Kolbe has the potential to invalidate Maryland’s ban on common semi-automatic firearms and detachable magazines. The Kolbe decision is extremely important, as it is the first instance where a United States court of appeals required “strict scrutiny,” the most stringent form of judicial review, for a ban on so-called “assault weapons” and detachable magazines.

    The outcome is the re-hearing is too close to call at this point. We will keep you apprised of further developments of this NRA-supported case as they occur.

  19. #19
    Activist Member swinokur's Avatar
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    possibly. if the three judge panel is overturned by the En Banq panel it could be very bad.

  20. #20
    Regular Member Thundar's Avatar
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    Quote Originally Posted by swinokur View Post
    possibly. if the three judge panel is overturned by the En Banq panel it could be very bad.
    Yes this is very bad. If the case is overturned enbac then it would take a majority, 5 of 8 to overturn at supreme court. With Scalia it was 5 of 9 pro gun, now it is 4 pro and 4 anti. This could begin the unwinding of Heller and MacDonald for keeping arms and be the beginning of what Justice Thomas calls the second class right for bearing arms.
    He wore his gun outside his pants for all the honest world to see. Pancho & Lefty

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