Amicus Brief: Kolbe v. Hogan

March 4, 2016

Everytown for Gun Safety filed this amicus brief in the U.S. Court of Appeals for the Fourth Circuit to urge the full court to reconsider a dangerous decision by a three-judge panel which would have subjected a Maryland gun law to the most rigorous form of judicial scrutiny and threatened legislators’ ability to adopt gun laws they believe necessary to protect public safety. On March 4, 2016, the full court agreed to rehear the case.

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No. 14–1945
In the United States Court of Appeals
for the Fourth Circuit ____________________________
STEPHEN V. KOLBE, et al.,
Plaintiffs-Appellants,
v.
LAWRENCE J. HOGAN, JR., GOVERNOR, et al.,
Defendants-Appellees.
_____________________________
On Appeal from the United States District
Court for the District of Maryland
____________________________
BRIEF OF AMICUS CURIAE EVERYTOWN FOR GUN SAFETY
IN SUPPORT OF APPELLEES AND REHEARING EN BANC
____________________________
J. Adam Skaggs
Mark Anthony Frasetto
EVERYTOWN FOR GUN SAFETY
P.O. Box 4184
New York, NY 10163
Deepak Gupta
Jonathan E. Taylor
Neil K. Sawhney
GUPTA WESSLER PLLC
1735 20th Street
Washington, DC 20009
(202) 888-1742
[email protected]
Counsel for Amicus Curiae
Everytown for Gun Safety
February 25, 2016
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08/05/2015 SCC – 1 –
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
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______________________________________________________________________________
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______________________________________________________________________________
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14-1945 Kolbe, et al. v. Hogan, et al.
Everytown for Gun Safety
amicus



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– 2 –
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CERTIFICATE OF SERVICE
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I certify that on _________________ the foregoing document was served on all parties or their
counsel of record through the CM/ECF system if they are registered users or, if they are not, by
serving a true and correct copy at the addresses listed below:
_______________________________ ________________________
(signature) (date)



/s/ Deepak Gupta February 25, 2016
Everytown for Gun Safety
February 25, 2016
/s/ Deepak Gupta February 25, 2016
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TABLE OF CONTENTS
Table of authorities…………………………………………………………………………………………………….ii
Introduction and interest of amicus curiae …………………………………………………………………1
Argument……………………………………………………………………………………………………………………2
Conclusion………………………………………………………………………………………………………………….8
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TABLE OF AUTHORITIES
Cases
District of Columbia v. Heller,
554 U.S. 570 (2008)………………………………………………………………………………………….passim
Friedman v. City of Highland Park,
784 F.3d 406 (7th Cir. 2015)………………………………………………………………………………. 2, 3
Fyock v. Sunnyvale,
779 F.3d 991 (9th Cir. 2015)……………………………………………………………………………………4
Heller v. Dist. of Columbia,
670 F.3d 1244 (D.C. Cir. 2011)……………………………………………………………………………….7
Tyler v. Hillsdale County Sheriff’s Department,
775 F.3d 308 (6th Cir. 2014)……………………………………………………………………………………7
United States v. Chester,
628 F.3d 673 (4th Cir. 2010)……………………………………………………………………………………4
United States v. Masciandaro,
638 F.3d 458 (4th Cir. 2011)……………………………………………………………………………………1
United States v. Skoien,
614 F.3d 638 (7th Cir. 2010)……………………………………………………………………………………4
Statutes
1893 Fla. Laws 71, chap. 4147…………………………………………………………………………………….5
1927 R.I. Pub. Laws 256, §§ 1, 4…………………………………………………………………………………5
1931 Cal. Acts 1000 ……………………………………………………………………………………………………5
1933 Ohio Laws 189…………………………………………………………………………………………………..5
1940 Minn. Acts 1593…………………………………………………………………………………………………5
District of Columbia Dangerous Weapons Act,
47 Stat. 650 (1932), ch. 465, §§ 1, 14 ……………………………………………………………………….6
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Legislative Materials
H.R. Rep. 103-489 (1994) …………………………………………………………………………………………..2
S. Rep. No. 575 (1932) ……………………………………………………………………………………………….6
Books and articles
Cody J. Jacobs, End the Popularity Contest, 84 Tenn. L. Rev. ___ (forthcoming
2016)………………………………………………………………………………………………………………….. 3, 4
Report of Firearms Committee, 38th Conference Handbook of the National
Conference on Uniform State Laws and Proceedings of the Annual Meeting
(1928)………………………………………………………………………………………………………………………6
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INTRODUCTION AND INTEREST OF AMICUS CURIAE
“This is serious business. We do not wish to be even minutely responsible
for some unspeakably tragic act of mayhem because in the peace of our
judicial chambers we miscalculated as to Second Amendment rights. . . . If
ever there was an occasion for restraint, this would seem to be it.” – United
States v. Masciandaro, 638 F.3d 458, 475–76 (4th Cir. 2011) (Wilkinson, J.).
Where Judge Wilkinson counseled restraint, the panel took the opposite path:
By a bare majority, it produced an extreme, unprecedented opinion that gravely
imperils legislators’ ability to adopt laws they deem necessary to protect their
constituents. As the nation’s largest gun-violence-prevention organization, amicus
Everytown for Gun Safety urges this Court to grant rehearing en banc and correct the
panel’s serious errors.
The panel’s embrace of strict scrutiny—in conflict with the law of every other
circuit—alone makes this case worthy of en banc review. Worse, the panel reached that
outlier result even though the plaintiffs failed to show that the Constitution confers
any right to possess military-style assault weapons and high-capacity magazines like
those that Maryland’s elected representatives have regulated. The panel opinion
fashions a dangerous and illogical rule under which these weapons are effectively
immune from regulation because they are deemed in “common use”—a rule that
cannot be reconciled with either District of Columbia v. Heller or the circuits that have
addressed the issue. And worse still, despite its obligation to consider history at the
threshold, the panel overlooked a century’s worth of semiautomatic-weapon
regulations that even the National Rifle Association endorsed.
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ARGUMENT
1. The panel’s insistence on strict scrutiny—in square conflict with every other
circuit to address a firearms law—flows from two fundamental flaws in the panel’s
analysis of the Second Amendment’s scope.
a. Common Use. The panel erred first by embracing an illogical theory of
“common use” that cannot be reconciled with Heller or the uniform precedent of the
circuits. The Second Amendment does not guarantee “a right to keep and carry any
weapon whatsoever in any manner whatsoever and for whatever purpose.” Heller, 554
U.S. 570, 626 (2008). In particular, it does not protect the highly dangerous “weapons
that are most useful in military service—M–16 rifles and the like—[which] may be
banned.” Id. at 627. Yet the panel somehow held it “beyond dispute” that the
Constitution guarantees access to weapons that are, in the judgment of Maryland
legislators as well as Congress, “virtually indistinguishable in practical effect” from
those Heller found unprotected by the Second Amendment. Op. 21; H.R. Rep. 103-
489 at 18 (1994). It based this erroneous conclusion on the idea that the assault
weapons that Maryland restricts are “commonly possessed by law-abiding citizens for
self-defense and other lawful purposes,” whereas the M–16 is not commonly used
because the federal government effectively prohibited it in 1986. Op. 38.
But “relying on how common a weapon is at the time of litigation [is] circular.”
Op. 72 (King, J. dissenting) (quoting Friedman v. City of Highland Park, 784 F.3d 406,
409 (7th Cir. 2015)). As Judge Easterbrook pointed out in upholding a similar law, “it
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would be absurd to say that the reason why a particular weapon can be banned is that
there is a statute banning it, so that it isn’t commonly owned. A law’s existence can’t
be the source of its own constitutional validity.” Id. If the panel’s decision were
allowed to stand, it would not only open up a stark conflict with the Seventh Circuit
but would establish this absurdity as the law of this Circuit.
What’s more, the panel’s reasoning fails even on its own terms. The panel
claims (at 38) that, like handguns, assault weapons are “commonly possessed by lawabiding
citizens for self-defense,” which Heller holds is the core of the right. But how
can that be true when “[t]here is no known incident of anyone in Maryland using an
assault weapon for self-defense”? Op. 71 (King, J., dissenting). And it is unclear what
“common use” means anyway. See generally Cody J. Jacobs, End the Popularity Contest, 84
Tenn. L. Rev. ___ (forthcoming 2016), at http://bit.ly/1gVsyGZ. Assault weapons
“constitute no more than 3% of the civilian gun stock, and ownership of such
weapons is concentrated in less than 1% of the U.S. population.” Op. 70 (King, J.,
dissenting). That is a far cry from the absolute handgun ban at issue in Heller.
The panel, however, ignored these numbers and instead focused on total sales
and manufacturing figures. See Op. 20–22. That newly minted test both underprotects
and overprotects the Second Amendment right: It underprotects by “creat[ing] an
incentive for governments that are interested in restricting access to firearms to ban
new weapons completely before they can become popular,” even if those weapons
would be “very effective for self-defense.” Jacobs, End the Popularity Contest, at 34. At
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the same time, it overprotects the right by giving the firearms industry “the ability to
unilaterally make new [highly dangerous] firearms protected simply by manufacturing
and heavily marketing them,” thereby “putting a great deal of power”—constitutional
power—“into the hands of gun manufacturers.” Id. at 33, 36. That is no way to
interpret a constitutional right, and this Court should grant rehearing and say so.
b. History. Compounding its threshold errors, the panel also failed to assess
the “historical understanding of the scope of the right.” Heller, 554 U.S. at 625. As this
Court has observed, heightened scrutiny applies only “[i]f the challenged regulation
burdens conduct that was within the scope of the Second Amendment as historically
understood.” United States v. Chester, 628 F.3d 673, 680 (4th Cir. 2010). “Longstanding”
regulations thus fall outside the scope of the right; they are treated as tradition-based
“exceptions” by virtue of their “historical justifications.” Heller, 554 U.S. at 627, 635.
But a regulation need not “mirror limits that were on the books in 1791” to be
longstanding under Heller. United States v. Skoien, 614 F.3d 638, 641 (7th Cir. 2010). To
the contrary, even “early twentieth century regulations” (like those Heller identified)
may qualify as longstanding. Fyock v. Sunnyvale, 779 F.3d 991, 997 (9th Cir. 2015).
The panel did not conduct the requisite historical analysis. Instead, it stated that
“nothing in the record demonstrat[es] that law-abiding citizens have been historically
prohibited from possessing semi-automatic rifles and LCMs.” Op. 28. But, as we now
show, there is in fact a century-old line of semiautomatic-weapon regulations—some
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of which were even more restrictive than Maryland’s law. That law is thus consistent
with our “historical tradition,” and constitutional under Heller. 554 U.S. at 627.
States have instituted various restrictions on semiautomatic rifles since they
were first developed at the turn of the twentieth century, often regulating them—
along with fully automatic weapons—as “machine guns.” Some of these restrictions
were in essence total prohibitions, and hence broader than Maryland’s law, which
“reaches only a particular subset of semiautomatic long guns with military features.”
Pet. 11. A 1927 Rhode Island law, for instance, prohibited the “manufacture, s[ale],
purchase or possess[ion]” of a “machine gun,” defined as “any weapon which shoots
more than twelve shots semi-automatically without reloading.” 1927 R.I. Pub. Laws
256, §§ 1, 4. Likewise, in 1933, California made it a felony to “possess[] . . . any
firearms of the kind commonly known as a machine gun,” defined as any firearm
“which [is] automatically fed after each discharge.” 1931 Cal. Acts 1000. And, several
years later, Minnesota did the same. 1940 Minn. Acts 1593 (prohibiting possession of
“a machine gun,” including “any firearm capable of automatically reloading after each
shot is fired, whether firing singly by separate trigger pressure or firing
continuously”).
1
1 Other states subjected semiautomatic weapons to much stricter regulation
than other firearms. Ohio, for example, made it a felony to “possess” any “semiautomatic[]”
firearm without a permit, which required the applicant to deposit a
$5,000 bond. 1933 Ohio Laws 189; see also 1893 Fla. Laws 71, chap. 4147 (making it a
crime “to carry or own a Winchester or other repeating rifle” that could fire multiple
rounds without reloading, absent a license and a $100 bond).
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Around the same time, Congress enacted a law “[t]o control the possession,
sale, transfer, and use of pistols and other dangerous weapons in the District of
Columbia,” making it a crime (punishable by up to a year in jail) to “possess any
machine gun,” defined as “any firearm which shoots . . . semiautomatically more than
twelve shots without loading.” 47 Stat. 650 (1932), ch. 465, §§ 1, 14. Notably, the
National Rifle Association “urged” enactment of this law, writing to the bill’s sponsor:
It is our earnest hope that your committee will speedily report the bill
favorably to the Senate as it is our desire this legislation be enacted for
the District of Columbia, in which case it can then be used as a guide
throughout the States of the Union, some seven or eight of which have
already enacted similar legislation.
S. Rep. No. 575, at 4–6 (1932). The NRA’s endorsement of this prohibition was
emblematic of a wider consensus on prohibiting certain semiautomatic weapons. Both
the 1927 National Crime Commission Firearm Act and the 1928 Uniform Firearms
Act, for example, criminalized the possession of “any firearm which shoots more than
twelve shots semi-automatically without reloading.” Report of Firearms Committee, 38th
Conference Handbook of the National Conference on Uniform State Laws and
Proceedings of the Annual Meeting 422–23 (1928).
This history demonstrates that the regulation and prohibition of semiautomatic
rifles is “longstanding” under Heller. 554 U.S. at 605. And, like the early twentieth
century regulations that Heller deemed longstanding—e.g., “prohibitions on possession
of firearms by felons and the mentally ill” and “laws imposing conditions and
qualifications on the commercial sale of arms”—Maryland’s more limited prohibition
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is “presumptively lawful.” Id. at 626–27 n.26. It thus does not burden a “right secured
by the Second Amendment.” Id. at 626. For this reason, too, rehearing is warranted.
2. After wrongly holding that the Constitution protects assault weapons, the
panel made matters worse by embracing strict scrutiny, concluding (at 36) that the law
“substantially burden[s] the core Second Amendment right” (even though there is no
evidence that anyone in Maryland has ever used an assault weapon for self-defense).
That puts this Circuit at odds with every other circuit to consider similar laws.2
See Pet. 1. The other circuits uniformly reject strict scrutiny for good reason: These
laws “do not impose a substantial burden” because “the prohibition of semiautomatic
rifles and large-capacity magazines does not effectively disarm individuals
or substantially affect their ability to defend themselves.” Heller v. Dist. of Columbia, 670
F.3d 1244, 1262 (D.C. Cir. 2011) (“Heller II”).
This Court should step in to correct the panel’s dangerous departure from the
consensus view of the other circuits. In just the past two weeks, the panel’s opinion
has already had a serious impact on litigation nationwide. To take just a few examples:
• Advocates have seized on the newly created circuit conflict in a petition for
certiorari in the Supreme Court, discussing at length the panel’s “selfconscious[]
split with the approaches taken by” the other federal circuits,
2 Indeed, “not a single court of appeals has ever” applied strict scrutiny to any
firearm regulation. Op. 75 (King, J., dissenting). When a divided Sixth Circuit panel
applied strict scrutiny in a narrow as-applied challenge, the full court promptly vacated
the decision to rehear the case en banc. See Tyler v. Hillsdale Cnty. Sheriff’s Dep’t, 775 F.3d
308, 328–29 (6th Cir. 2014), reh’g granted, No. 13-1876 (6th Cir. Apr. 21, 2015).
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noting that “the Fourth Circuit charted a completely different course.” Pet. for
Cert. 16–17, Shew v. Malloy, (No. 15-1030) (filed Feb. 11, 2016).
• Plaintiffs challenging the federal law regulating automatic weapons have filed a
letter in the Fifth Circuit arguing that “strict scrutiny should apply” under Kolbe.
Doc. No. 00513373452, Hollis v. Lynch, No. 15-10803 (Feb. 8, 2016).
• Plaintiffs challenging Colorado’s law regulating large-capacity-magazines have
argued that, under Kolbe, “strict scrutiny is required for a statute banning
magazines holding more than 10 rounds.” Doc. No. 1019567532, Colo. Outfitters
v. Hickenlooper, No 14-1290 (10th Cir. Feb. 8, 2016).
Particularly given the Supreme Court’s current lack of a full complement of
Justices, this Court should take seriously the imperative for national uniformity on this
critical constitutional issue. Absent correction, the panel majority’s decision will not
only impair Maryland’s ability “to protect public safety and to reduce the destructive
effects of firearm violence,” Pet. 1, but also undermine other states’ and cities’ ability
to regulate “exceptionally lethal weapons of war,” Op. 68 (King, J., dissenting).
CONCLUSION
The Court should grant Maryland’s petition for rehearing en banc.
Respectfully submitted,
/s/ Deepak Gupta
Deepak Gupta
Jonathan E. Taylor
Neil K. Sawhney
GUPTA WESSLER PLLC
1735 20th Street
Washington, DC 20009
(202) 888-1742
[email protected]
J. Adam Skaggs
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Mark Anthony Frasetto
EVERYTOWN FOR GUN SAFETY
P.O. Box 4184
New York, NY 10163
Counsel for Amicus Curiae
Everytown for Gun Safety
February 25, 2016
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CERTIFICATE OF COMPLIANCE
A petition for rehearing is limited to 15 pages. Fed. R. App. P. 40(b). The
Federal Rules of Appellate Procedure do not contain a word limit for amicus briefs in
support of a petition for rehearing. Generally, amicus briefs may not exceed one-half
the size of a principal brief. See Fed. R. App. P. 29(d). Applying the same one-half
ratio to this brief results in a seven-and-one-half page limit. This brief meets that limit.
This brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and the
type style requirements of Fed. R. App. P. 32(a)(6) because this brief has been
prepared in proportionally spaced typeface using Microsoft Word 2010 in 14 point
Garamond font.
/s/ Deepak Gupta
Deepak Gupta
Counsel for Amicus Curiae
Everytown for Gun Safety
February 25, 2016
CERTIFICATE OF SERVICE
I certify that on February 25, 2016, the foregoing brief was served on all parties
or their counsel of record through the CM/ECF system.
/s/ Deepak Gupta
Deepak Gupta
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