Win in Kolbe Decision!

Maryland Capitol Building
Maryland Capitol Building
Maryland Shall Issue (MSI)
Maryland Shall Issue (MSI)

Maryland -( On February 4, 2016, the 4th Circuit Court of Appeals issued its decision.

In a divided decision with Chief Judge Traxler and Judge Agee in the majority (Judge King dissented from this portion) the court first vacated the District Court's decision upholding the AWB and the magazine limit, holding that these provisions were subject to strict scrutiny under the Second Amendment. Since the District Court had applied a much less demanding level of intermediate scrutiny, the 4th Circuit remanded the case to the District court for application of strict scrutiny in further proceedings. The case is thus not over.

However, the strict scrutiny standard ruling will make it much more difficult for the State to prevail on remand. The State will have to show not only a compelling interest in public safety. Rather, as the court explained, strict scrutiny “requires the Government to prove that the restriction furthers a compelling interest and is narrowly tailored to achieve that interest” and that [t]o be narrowly tailored, the law must employ the least restrictive means to achieve the compelling government interest.” Opinion page 34, citing United States v. Playboy Entertainment Group, Inc., 529 U.S. 803, 813 (2000). In contrast, intermediate scrutiny merely “requires the government to ‘demonstrate . . . that there is a reasonable fit between the challenged regulation and a substantial government objective.'” (Id.). This is a *very* difficult standard to satisfy. As the dissenting opinion of Judge King noted, “though strict scrutiny may not be strict in theory, but fatal in fact,' see Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 237 (1995), it is at least ‘the most demanding test known to constitutional law,' see City of Boerne v. Flores, 521 U.S. 507, 534 (1997).”

Dissent at page 81. Equally significant was that the panel majority expressly went into conflict with the novel standard of review used by the 7th Circuit in Friedman v. City of Highland Park, 784 F.3d 406, 414 (7th Cir. 2015), and the use of intermediate scrutiny by the D.C. Circuit to sustain an AWB in Heller v. District of Columbia (“Heller II”), 670 F.3d 1244, 1252 (D.C. Cir. 2011), and by the Ninth Circuit to sustain a ban on standard capacity magazines in Fyock v. Sunnyvale, 779 F.3d 991, 996 (9th Cir. 2015). The panel majority relied extensively on the dissenting opinions published in Friedman and Heller II and on the dissent by Justice Thomas in dissenting from the denial of certiorari in Friedman.

In separate parts of the court's decision, a different majority of the panel (Judge Agee and Judge King), held that the exemption for retired police officers did not violate equal protection. Judge Traxler dissented from this part of the opinion. The court unanimously held that the ban on copycat weapons was not so vague as to be unconstitutional under the Due Process Clause. Since this was a split decision on the issues, either party may file a petition for rehearing en banc and thus seek a decision by the entire Fourth Circuit, sitting en banc. Either party may also petition for certiorari with the Supreme Court, either from the original panel decision or from any decision of the en banc court. Further review is thus possible.

Given that we are a named plaintiff in this case, there is only so much that we can discuss and we hope that you understand.

We will distribute further information as appropriate.

The full decision can be found on our forum:

Now would be a great time to donate to the HQL fund! (Join/Donate)

Bill Sutton
Maryland Shall Issue Inc
[email protected]

About Maryland Shall Issue:

Mission Statement: Maryland Shall Issue is an all volunteer, non-partisan effort dedicated to the preservation and advancement of all gunowners’ rights in Maryland, with a primary goal of CCW reform to allow all law-abiding citizens the right to carry a concealed weapon; and to the education of the community to the awareness that ‘shall issue’ laws have, in all cases, resulted in decreased rates of violent crime.

For more information, visit:

Notify of
Inline Feedbacks
View all comments
4 years ago

This has a potential to impact EVERY firearm restriction in the USA. If Strict Scrutiny, as ordered in the case of MD SB 281, is applied to all other 2A infringing laws, they are all likely to be stricken from the books.

4 years ago

Whatever happens don’t bring Richard Pearson of ISRA into the deal, unless you want to lose. Pearson let NRA contract lobbyist for Illinois Todd Vandermyde put Duty to Inform w/ criminal penalties in Rep. Brandon Phelps HB183 carry bill in 2013, and that was the “NRA backed” bill! Pearson and the hick brigade passed a carry bill with criminal penalties for dozens of gun-free zones, an unelected Star Chamber review board, an unlimited privacy waiver, and of course Vandermyde’s crowning achievement DTI,because the anti-gun Chiefs of Police wanted to blow away a few armed citizens with legal cover. ISRA doesn’t… Read more »