by Joseph Blocher, Professor of Law, Duke Law School
On February 21, the U.S. Court of Appeals for the Fourth Circuit rejected a Second Amendment challenge to Maryland’s ban on military-style “assault weapons” and detachable large-capacity magazines. The 10-4 en banc decision in Kolbe v. Hogan is a victory for gun regulation advocates. But it is also a case about alternatives: the court’s two alternative holdings, and the significance of the alternative “Arms” left available by Maryland’s statute.
The central jurisprudential debate will be whether Kolbe is faithful to the Supreme Court’s landmark decision in District of Columbia v. Heller, which held that the Second Amendment protects an individual right to keep and bear arms for private purposes, the “core” of which is self-defense. Heller also emphasized that a potentially wide range of gun regulation is constitutional, including bans on “dangerous and unusual” weapons—a class, the Court suggested, that might be equated with those not in “common use” for lawful purposes.
In the decade since Heller, lower courts have almost unanimously adopted a two-part doctrinal test to evaluate the constitutionality of gun regulations. The first part of that test asks whether the relevant gun, person, or action falls within the scope of the Second Amendment—not all of them do, just as not all speech acts count as “speech” for purposes of the First. Felons, the mentally ill, and weapons of mass destruction generally fall entirely outside the scope of the right. If the Second Amendment is implicated, the second question is whether the regulation’s burdens are justifiable.
The circuit courts have uniformly upheld assault weapons bans, but they’ve typically done so using the second part of the test—that is, by assuming that assault weapons are constitutional “Arms,” but that they can nonetheless be banned. Kolbe is notable because the court relied on both parts of the test, holding that the regulated guns and magazines fall outside the scope of the Second Amendment, and also that the ban would be constitutional even if they didn’t.