Kolbe Vs Hogan: A Case At Odds With Heller Facts & History , Part II

By Roger J. Katz, Attorney at Law and Stephen L. D’Andrilli  ~ Part II

Dick Heller Signs autographs: The Heller case stands for the proposition that “The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home.”
Arbalest Quarrel
Arbalest Quarrel

New York, NY  -(Ammoland.com)- The Plaintiffs in Kolbe, include two American citizens and residents of the State of Maryland, a gun club, a gun dealer, and several gun associations. The Plaintiffs filed an action in Maryland District Court, in 2013, against several Maryland State Officials:

The citation for the original case, filed in the U.S. District Court for the District of Maryland, with a slightly different case name is: Kolbe vs. O’Malley, 42 F. Supp. 3d 768; 2014 U.S. Dist. LEXIS 110976 (D. Md. 2014). On appeal to the U.S. Circuit Court of Appeals for the Fourth Circuit, the caption of the case was changed to reflect the new Governor, as party Defendant, Larry Hogan, who superseded Governor Martin O’Malley.

In their Complaint, the Plaintiffs alleged that Maryland’s restrictive gun legislation, titled “The Firearm Safety Act of 2013,” is unconstitutional. Plaintiffs alleged specifically that the Maryland Firearm Safety Act infringes the Second Amendment to the U.S. Constitution, the Due Process Clause of the Fourteenth Amendment, and that the Act should be declared void for vagueness.

The Firearm Safety Act is codified, in substantial part, in the Maryland Penal Code, Crim. Law (“CR”) §§ 4-301(d), 4-303(a)(2), and § 4-305(b).

What does The Firearm Safety Act of 2013 say? The Act says that, “after October 1, 2013, no person may possess, sell, offer to sell, transfer, purchase, or receive ‘assault pistols,’ ‘assault long guns,’ and ‘copycat  weapons.’ These banned weapons are, collectively, defined as ‘assault weapons’ under the Act. In addition, the Act states that a person “may not manufacture, sell, offer for sale, purchase, receive, or transfer a detachable magazine that has a capacity of more than 10 rounds of ammunition for a firearm.”

The focus of Plaintiffs’ Complaint was on challenging the constitutionality of Md. Criminal Law Code § 4-403, titled, Assault Weapons—Prohibited.  § 4-403(a) says: “Except as provided in subsection (b) of this section, a person may not transport an assault weapon into the State or possess, sell, offer to sell, transfer, purchase, or receive an assault weapon.”

What constitutes an ‘assault weapon’ under Maryland law? An ‘assault weapon’ is no more than a legal fiction. Statute. Md. Criminal Law Code § 401, titled, Assault Weapons defines ‘assault weapon’ as an ‘assault long gun’ or ‘assault pistol’ or a ‘copycat weapon.’ Those three expressions are, in turn, defined as follows:

“‘Assault long gun’ means any assault weapon listed under § 5-101(r)(2) of the Public Safety Article.

‘Assault pistol’ means any of the following firearms or a copy regardless of the producer or manufacturer:

AA Arms AP-9 semiautomatic pistol;

Bushmaster semiautomatic pistol;

Claridge HI-TEC semiautomatic pistol;

D Max Industries semiautomatic pistol;

Encom MK-IV, MP-9, or MP-45 semiautomatic pistol;

Heckler and Koch semiautomatic SP-89 pistol;

Holmes MP-83 semiautomatic pistol;

Ingram MAC 10/11 semiautomatic pistol and variations including the Partisan Avenger and the SWD Cobray;

Intratec TEC-9/DC-9 semiautomatic pistol in any centerfire variation;

P.A.W.S. type semiautomatic pistol;

Skorpion semiautomatic pistol;

Spectre double action semiautomatic pistol (Sile, F.I.E., Mitchell);

UZI semiautomatic pistol;

Weaver Arms semiautomatic Nighthawk pistol; or

Wilkinson semiautomatic ‘Linda’ pistol.


‘Assault weapon’ means:

an assault long gun;

an assault pistol; or

a copycat weapon.


‘Copycat weapon’ means:

a semiautomatic centerfire rifle that can accept a detachable magazine and has any two of the following:

a folding stock;

a grenade launcher or flare launcher; or

a flash suppressor;

a semiautomatic centerfire rifle that has a fixed magazine with the capacity to accept more than 10 rounds;

a semiautomatic centerfire rifle that has an overall length of less than 29 inches;

a semiautomatic pistol with a fixed magazine that can accept more than 10 rounds;

a semiautomatic shotgun that has a folding stock; or

a shotgun with a revolving cylinder.

‘Copycat weapon’ does not include an assault long gun or an assault pistol.”


Penalties for violation of the law are harsh. A person who violates the Act “is guilty of a misdemeanor and on conviction is subject to imprisonment not exceeding 3 years or a fine not exceeding $5,000 or both.”

Does the Act apply evenly to everyone? No. The law exempts retired law enforcement officers.



In ruling for the Defendants, upholding the constitutionality of a highly restrictive Firearm Safety Act, amounting essentially to a gun ban on an entire category of firearms, the lower Court said this: the Firearm Safety Act of 2013, which represents the considered judgment of this State’s legislature and its governor, seeks to address a serious risk of harm to law enforcement officers and the public from the greater power to injure and kill presented by assault weapons and large capacity magazines. The Act substantially serves the government’s interest in protecting public safety, and it does so without significantly burdening what the Supreme Court has now explained is the core Second Amendment right of ‘law-abiding, responsible citizens to use arms in defense of hearth and home.’”

The ruling, far from clarifying the purported constitutionality of Maryland’s restrictive Act, begs the very question at issue: does the Act, banning citizen ownership of an entire category of firearms, violate the Second Amendment to the U.S. Constitution precisely because the Act precludes to law-abiding citizens the right to own an entire category of firearms they have owned for decades; and does the Act violate, as well, the Equal Protection Clause of the Fourteenth Amendment insofar as it extends to retired law enforcement officers a right to own a large category of firearms the Act denies to everyone else?



Whenever a Second Amendment challenge is raised, courts of competent jurisdiction must consider the impact of and import of the U.S. Supreme Court’s decision in District of Columbia vs. Heller, 554 U.S. 570, 128 S. Ct. 2783 (2008), made applicable to the States in McDonald vs. City of Chicago, 561 U.S. 742, 130 S. Ct. 3020 (2010).

To most people—those who have at least an inkling as to the import of Heller—the Heller case stands for the proposition that The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home.”


Upon acknowledging that holding as they must, Courts, such as the U.S. District Court for the District of Maryland, that profess an open dislike for the Heller case generally and for the Second Amendment particularly, proceed on their merry way to misread Heller. They do so to uphold draconian gun laws that are clearly inconsistent with Heller.

Is Heller so difficult to understand? No! Even through a cursory reading of Heller, one can see that Justice Scalia, who wrote for the majority, provided specific, clearly articulated guidance for Courts to follow when a Second Amendment challenge to restrictive gun legislation comes before a Court.

The U.S. Supreme Court in Heller, laid out, succinctly, the Court’s findings in its Syllabus. The Court Syllabus precedes discussion of the facts and issues of a case, and law applicable to a case. The Syllabus is not part of the main opinion but provides, for judges and attorneys, an abbreviated roadmap for getting a handle on a case.

From the Syllabus in Heller, we see that the majority in Heller sets forth three distinct holdings. Apart from the first holding—namely that the right of the people to keep and bear arms is a right that accrues to the individual and, so, unconnected to that individual’s service in a militia—there are two other holdings that must be considered, along with the reasoning of the majority in Heller.

The failure of the lower U.S. District Court and the failure of the higher Fourth Circuit Court of Appeals to adhere to the holdings of Heller and to apply the reasoning and methodology of the Heller Court, led to wrong decisions—decisions grounded on poor legal reasoning.

Apart from holding that the right of the people to keep and bear arms is an individual right, the U.S. Supreme Court in Heller held that: “The District’s total ban on handgun possession in the home amounts to a prohibition on an entire class of ‘arms’ that Americans overwhelmingly choose for the lawful purpose of self-defense. Under any of the standards of scrutiny the Court has applied to enumerated constitutional rights, this prohibition—in the place where the importance of the lawful defense of self, family, and property is most acute—would fail constitutional muster.”

It is precisely on the issue as to whether a complete ban on “an entire class of ‘arms’ that Americans overwhelmingly choose for the lawful purpose of self-defense,”—weapons that Maryland, and several other jurisdictions define as ‘assault weapons’— does or does not amount to an unconstitutional infringement of the American citizen’s right to keep and bear arms, that the U.S. District Court for the District of Maryland and the U.S. Court of Appeals for the Fourth Circuit should have focused their inquiry.

Instead the lower U.S. District Court and the en banc Fourth Circuit meander into political discussions of whether this or that weapon that a citizen commonly owns constitutes a weapon of war and finding that this is so, deliver their rulings, namely, that the Maryland Firearm Safety Act, banning a very large category of weapons that the public commonly uses for self-defense, does not infringe the Second Amendment in an unconstitutionally impermissible way.

Moreover, the lower District Court and the Fourth Circuit’s en banc majority admitted that the weapons the State of Maryland seeks to ban are not really weapons of war at all but are merely like military weapons—weapons the State refers to as “military-style weapons,” namely, “assault weapons”—weapons, nonetheless, similar enough to actual military weapons, according to these Court opinions, so as to be construed as military weapons and therefore not within the scope of the Second Amendment.

But, assuming, for purpose of argument, that so-called “military-style weapons” or “copycat weapons” or “assault weapons” were true military weapons that the military does use—which, in fact, the military doesn’t—still, that doesn’t ipso facto mean such weapons do not deserve constitutional protection.

After all, the Second Amendment, as written, and as intended by the founders of our free Republic, sought specifically to place military weapons in the hands of the citizenry, that citizens may protect themselves and the States from foreign aggression—threats outside the United States—and from a tyrannical federal government—threats to our individual liberty inside the United States.

Even if the Court in Heller didn’t rule directly on whether  American citizens may lawfully keep and bear true military arms for self-defense, this does not mean Courts may willy-nilly rule they can’t. But, that is what we see in all too many court opinions today—an assumption that the public is not permitted, under the Second Amendment, to keep and bear military arms or to keep and bear arms that, in a court’s judgment are like military arms even if they aren’t actually military arms.

But, what the Heller Court did point out is that weapons that the public commonly uses for self-defense are weapons that do fall within the scope and protection of the Second Amendment.

Such weapons that the Maryland Legislature, and several other State Legislatures, define as prohibited ‘assault weapons’ are those that the public commonly uses for self-defense. If so, such so-called “assault weapons” are a category of weapons, like handguns, that no Legislature may lawfully ban. To do so constitutes an impermissible infringement of an American citizen’s right to keep and bear arms under the Second Amendment, and constitutes, as well, an action by State government that is at loggerheads with the Heller decision.

We continue with our analysis in Part Three of this series.

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