Gun Lobby Suffers Setback

By: Antoinette D’Addario


Photo Credit: Elvert Barnes

On February 21 the Fourth Circuit Court of Appeals dealt a blow to the gun lobby in their decision in Kolbe v. Hogan which chose to uphold Maryland’s ban on assault weapons. This decision overturns last year’s 2-1 decision by the Fourth Circuit panel to overturn the ban. The Fourth Circuit has now joined the Second, Ninth and D.C. circuits who have upheld similar bans in other states.

This decision furthers the Supreme Court’s 2008 decision in the District of Columbia v. Heller which held in a 5-4 decision that the Second Amendment protects an individual’s right to own a firearm while striking down a provision prohibiting the ownership of handguns as well as requiring rifles and shotguns to be kept unloaded and disassembled or bound by a trigger lock when not in use. The Heller decision did not, however, deal with the questions of military-style weapons, leaving that to the states’ discretion.

Hannah Shearer, a staff attorney at the Law Center to Prevent Gun Violence, sees this decision as affirming states’ rights to make policy decisions and prevent assault weapon crimes. The Law Center to Prevent Gun Violence was founded after a rampage at the Pettit & Martin law firm in San Francisco in 1993.

“[It] has been a leader in gun violence prevention since its founding,” Shearer said.

After its establishment in California, the Law Center to Prevent Gun Violence expanded nationwide and now advises state legislatures on gun laws and Second Amendment issues. It recently merged with Americans for Responsible Solutions, an organization founded by former Congresswoman Gabrielle Giffords who was shot at an event in 2011.

There is potential for the gun lobby to appeal the case to the Supreme Court, although the chances of it being heard are slim.

“At least two justices have signaled they would be sympathetic to the case … [and] signaled they would decide the issue differently from the Fourth Circuit. No other justices have signaled they agree,” Shearer said.

While the Fourth Circuit encompasses Maryland and Virginia, the decision has no effect on the District of Columbia, as it has its own court of appeals. However, the D.C. circuit has upheld assault bans in the past, as indicated in their decision in Heller, which originally affirmed a ban on handguns.

“The Second Amendment envisions [that] certain weapons may be regulated within it as long as there’s enough room to keep hand guns in the home for self-defense.”

Going forward Shearer feels there needs to be more focus on taking weapons away from those who have lost their rights to own them.

“Many states don’t have a process of taking guns from people who have committed those [violent] crimes and aren’t allowed to possess guns anymore,” she said.

As argued in the court’s opinion, the goal of an assault weapon ban is to prevent mass casualties from a gun attack. The defendants appealed the original court decision on Second and Fourteenth Amendment grounds, arguing the ban infringed on an individual’s right to keep and bear arms as well as violated the equal protection and due process clause of the Fourteenth Amendment. Judge King, writing for the majority, goes on to agree with the original court’s opinion and affirms their judgment with one divergence.

“We conclude – contrary to the now-vacated decision of our prior panel – that the banned assault weapons and large-capacity magazines are not protected by the Second Amendment. That is, we are convinced that the banned assault weapons and large-capacity magazines are among those arms that are ‘like’ ‘M-16 rifles’ – ‘weapons that are most useful in military service’ – which the Heller Court singled out as being beyond the Second Amendment’s reach,” King said.

According to Shearer one of the pressing problems in today’s climate is the gun lobby’s pressing of more extreme views that aren’t shared by the majority of Americans, such as open carry in public spaces.

“I think most Americans strong oppose [open carry] and guns in schools and other sensitive public areas which have historically been considered safe havens from guns,” she said.

The Kolbe opinion studies the body of evidence surrounding assault weapons and their lethality. Deemed “lethal weapons of war,” which were designed to achieve one purpose – “killing or disabling the enemy on the battlefield.” These weapons were not intended for the civilian market due to their “capability for lethality – more wounds, more serious, in more victims,” according to the Kolbe opinion.

The upholding of the ban signals hope for the gun control movement.

“The state was making an informed choice,” Shearer said, “it’s not something they’re just doing without thinking it will have a real impact.”



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