Kolbe v. Hogan
What might be a landmark case regarding the banning of assault rifles could be headed for a Supreme Court hearing. The case, Kolbe v. Hogan, is scheduled for the SCOTUS conference of 11/21/17. That is when Justices will decide whether or not to hear the case.
The case is an appeal of the Fourth Circuit’s en band decision upholding the Maryland assault weapons ban. That case was originally heard in district court, which upheld the ban. Upon appeal a 3 judge panel found the ban to be a 2A violation. The State requested an en bans hearing, which resulted in reversing the appeal panel decision.
Almost immediately after the ban was upheld a petition was filed seeking SCOTUS to hear the case. Now the conference to make that decision has been scheduled. A number of legal experts think SCOTUS will elect to hear the case. The reasoning behind that is because there are now three Circuit Courts that have upheld such bans, but each one has used a different rational for coming to its decision. That means there is no clear test for determining whether a ban is proper or not. One duty of SCOTUS is to resolve such confusion and and conflicts by setting a national precedent.
Kolbe v. Hogan offers the pro 2A advocates the best opportunity to bring closure to the assault ban issue because the Fourth Circuit took a daring leap in upholding the MD ban. It interpreted SCOTUS’ Heller v. District of Columbia decision, which found that weapons that are in common use were protected under 2A, but that weapons best suited for Military use like the M16 could be regulated. That language of the decision was a bit murky. Clearly M16 rifles are not in common use because they are limited to use by the military unless one gets a special ATF approval to possess one. But AR15 style weapons are in common use and they look like and in some ways function similar to M16 rifles. So the unresolved questions that arises from Heller is what does “like the M16” mean. Does it mean look like or function like? And if it means function like how much similarity is required.
If it means look like, then banning assault rifles might not be a violation of 2A rights. If it means function like, then rifles that only look like military M 16 (including variations like the M 4) should not be subject to being banned especially if they are in common use. So called assault rifles are in common use with over 1,600,000 having been sold in the US.
The parameters of the Kolbe Case are such that SCOTUS might be forced to make a definitive ruling on several points. The MD ban was upheld not only on the basis of “look like” but also by a comparison of the the functionality of military assault rifles like the M16 and rifles like the civilian AR15. The en banc Decision reasoned that so called assault rifles functioned in a manner to make them similar to but not identical to military assault rifles. It found that the differences between automatic fire capability and semi automatic fire capability were not great enough to affect lethality so therefore they could be banned.
So now SCOTUS could be forced to do something it rarely does, that is, to rule with such specifics as to make interpretation of its decision absolutely clear. That would be a landmark 2A decision regardless of which way the Court would rule.
Of course it is possible that SCOTUS will not decide to hear the case and thus allow the ever increasing confusion and disagreement over banning assault like weapons to go unresolved. We shall see.
What might be a landmark case regarding the banning of assault rifles could be headed for a Supreme Court hearing. The case, Kolbe v. Hogan, is scheduled for the SCOTUS conference of 11/21/17. That is when Justices will decide whether or not to hear the case.
The case is an appeal of the Fourth Circuit’s en band decision upholding the Maryland assault weapons ban. That case was originally heard in district court, which upheld the ban. Upon appeal a 3 judge panel found the ban to be a 2A violation. The State requested an en bans hearing, which resulted in reversing the appeal panel decision.
Almost immediately after the ban was upheld a petition was filed seeking SCOTUS to hear the case. Now the conference to make that decision has been scheduled. A number of legal experts think SCOTUS will elect to hear the case. The reasoning behind that is because there are now three Circuit Courts that have upheld such bans, but each one has used a different rational for coming to its decision. That means there is no clear test for determining whether a ban is proper or not. One duty of SCOTUS is to resolve such confusion and and conflicts by setting a national precedent.
Kolbe v. Hogan offers the pro 2A advocates the best opportunity to bring closure to the assault ban issue because the Fourth Circuit took a daring leap in upholding the MD ban. It interpreted SCOTUS’ Heller v. District of Columbia decision, which found that weapons that are in common use were protected under 2A, but that weapons best suited for Military use like the M16 could be regulated. That language of the decision was a bit murky. Clearly M16 rifles are not in common use because they are limited to use by the military unless one gets a special ATF approval to possess one. But AR15 style weapons are in common use and they look like and in some ways function similar to M16 rifles. So the unresolved questions that arises from Heller is what does “like the M16” mean. Does it mean look like or function like? And if it means function like how much similarity is required.
If it means look like, then banning assault rifles might not be a violation of 2A rights. If it means function like, then rifles that only look like military M 16 (including variations like the M 4) should not be subject to being banned especially if they are in common use. So called assault rifles are in common use with over 1,600,000 having been sold in the US.
The parameters of the Kolbe Case are such that SCOTUS might be forced to make a definitive ruling on several points. The MD ban was upheld not only on the basis of “look like” but also by a comparison of the the functionality of military assault rifles like the M16 and rifles like the civilian AR15. The en banc Decision reasoned that so called assault rifles functioned in a manner to make them similar to but not identical to military assault rifles. It found that the differences between automatic fire capability and semi automatic fire capability were not great enough to affect lethality so therefore they could be banned.
So now SCOTUS could be forced to do something it rarely does, that is, to rule with such specifics as to make interpretation of its decision absolutely clear. That would be a landmark 2A decision regardless of which way the Court would rule.
Of course it is possible that SCOTUS will not decide to hear the case and thus allow the ever increasing confusion and disagreement over banning assault like weapons to go unresolved. We shall see.
