By Blake Stafford

On February 4, 2016, the Fourth Circuit issued its published opinion in Kolbe v. Hogan, a civil case challenging the constitutionality of Maryland’s Firearm Safety Act (“FSA”).  The FSA criminalizes the possession, sale, and transport of certain semi-automatic guns and narrows the scope of detachable magazines that may be manufactured or sold.  Using intermediate scrutiny in its evaluation of the FSA, the district court held that the FSA restrictions were valid under the Second Amendment.  In a 2–1 decision, the Fourth Circuit vacated the judgment and remanded the case back to the district court, holding that strict scrutiny is the appropriate standard for the Second Amendment challenges.

Facts & Procedural History

In April 2013, Maryland passed the FSA, which bans certain firearms effective October 1, 2013.  The first challenged provision criminalizes the possession, sale, purchase, transfer, or transport of any firearm designated as an “assault weapon,” including the popular AR-15 and AK-47 semi-automatic rifles.  Md. Code, Crim. Law § 4–303(a).  The second challenged provision criminalizes the manufacture, sale, purchase, or transfer of detachable magazines with a capacity of more than ten rounds of ammunition for a firearm.  Md. Code, Crim. Law § 4–305(b).  The FSA contains a grandfather clause allowing those in lawful possession of prohibited firearms or magazines prior to October 1, 2013, to continue such possession.  Md. Code, Crim. Law § 4–303(b)(3)(i).  The FSA also contains exceptions for several classes of individuals, including active law enforcement officers, licensed firearms dealers, and retired state or local law enforcement agents who received the prohibited firearm or magazine prior to or upon retirement.  Md. Code, Crim. Law § 4–302(7)(i), (ii).

Just before the FSA bans became effective, the FSA was challenged on several constitutional grounds by two individual residents in Maryland; two businesses that operate in the firearms, hunting, and sport shooting industries; and several trade, hunting and gun-owners’ rights organizations (collectively “Plaintiffs”).  Plaintiffs sought declaratory and injunctive relief, arguing (1) that the firearm and magazine abridged their rights under the Second Amendment; (2) that the exemption for retired law enforcement officers violated the Equal Protection Clause of the Fourteenth Amendment; and (3) that certain provisions were unconstitutionally vague under the Due Process Clause of the Fourteenth Amendment.

The district court granted summary judgment to the State on all three grounds.  First, the district court determined that intermediate scrutiny applied to the Second Amendment claims, and concluded that Maryland’s firearm and magazine bans met the applicable standards and were thus valid under the Second Amendment.  Second, the district court held that retired officers “are differently situated” than ordinary citizens who wish to obtain assault rifles; thus, there is no Equal Protection violation.  Third, the district court concluded that the bans set forth “an identifiable core of prohibited conduct” and were thus not unconstitutionally vague.

Second Amendment

The Fourth Circuit applies a two-part approach to Second Amendment claims.  The first step is to determine whether the challenged law imposes a burden on conduct falling within the scope of the Second Amendment’s guarantee.  That is, the challenged law must implicate some degree of Second Amendment protection.  If it does not, the challenged law is valid.  If it does, then the second step is to apply the appropriate form of ends-means scrutiny.

Second Amendment Applies.  The first inquiry—whether the Second Amendment is implicated by the law—requires a determination of whether the prohibited firearms are “commonly possessed by law-abiding citizens for lawful purposes.”  First, the Court found that law-abiding citizens commonly possess the prohibited firearms.  Between 1990 and 2012, more than 8 million AR- and AK-platform semi-automatic rifles alone were manufactured in or imported into the United States.  Likewise, the Court found that the prohibited magazines are commonly kept by American citizens, as there are more than 75 million such magazines in circulation in the United States.  Second, the Court found that the common possession by law-abiding citizens was for a lawful purpose.  The record evidence showed that self-defense was a primary reason for the purchase of weapons banned under the FSA and that self-defense was a suitable purpose for semi-automatic rifles.  Moreover, the Court found nothing in the record demonstrating that law-abiding citizens have been historically prohibited from possessing the prohibited firearms and magazines.  Thus, the Court held that the prohibited weapons are commonly used for lawful purposes as required for Second Amendment protection.

Strict Scrutiny Applies.  Next, the Court determined the appropriate level of scrutiny by considering “the nature of the conduct being regulated and the degree to which the challenged law burdens the right.”  First, the Court found that the challenged provisions of the FSA implicate the core of the Second Amendment: the right of law-abiding, responsible citizens to use arms in defense of hearth and home.  Second, the Court found that the challenged provisions substantially burden this right by imposing a complete ban on the possession of these weapons.  The Court noted that the availability of other, legal weapons did not mitigate this finding.  Thus, the Court held that strict scrutiny is the appropriate level of scrutiny to apply to the bans of semi-automatic rifles and magazines holding more than 10 rounds.

Equal Protection Clause

A different majority of the 3-judge panel held that retired police officers are not similarly situated with the public at large for purposes of the FSA; thus, granting those officers certain rights under the FSA does not violate the Equal Protection Clause.  To succeed on an equal protection claim, a plaintiff must first demonstrate that he has been treated differently from others with whom he is similarly situated.  In this case, the Court provided a number of dissimilarities between retired police officers and the public at large.  First, retired police officers possess a unique combination of training and experience related to firearms.  Second, because they are granted a special degree of trust, police officers are instilled with an unusual ethos of public service.  Third, retired police officers face special threats that private citizens do not, with the most obvious being criminals whom they have arrested.  Fourth, retired police officers would also be more likely use their firearms in ways consistent with the public’s interests, not simply private ones.  Thus, the Court held that retired police officers and the public are not similarly situated, and dissimilar treatment of these dissimilar groups does not violate the Equal Protection Clause.

Vagueness: Due Process Clause

The final challenge by Plaintiffs was a vagueness claim under the Due Process Clause of the Fourteenth Amendment.  The FSA prohibits possession of “assault long guns,” which are defined by reference to the list of specific “assault weapons or their copies.”  The statute does not define the term “copies,” and there is no state regulatory definition.  The Court found that the plain meaning of the word—“something that is or looks exactly or almost exactly like something else: a version of something that is identical or almost identical to the original”—is not beyond the grasp of an ordinary citizen.  A statute need only have a “legitimate sweep,” that identifies a “core” of prohibited conduct to avoid unconstitutional vagueness, and the Court held that the challenged provisions sufficiently demarcated a core of prohibited conduct to survive vagueness review.


In sum, the Fourth Circuit (1) vacated the district court’s summary judgment order on Plaintiffs’ Second Amendment claims and remands for the district court to apply strict scrutiny; (2) affirmed the district court’s order on Plaintiffs’ Equal Protection claim with respect to the FSA’s exception permitting retired law enforcement officers to possess semi-automatic rifles; and (3) affirmed the district court’s conclusion that the FSA is not unconstitutionally vague.


Two dissents were written, the first regarding the Second Amendment claim and the second regarding the Equal Protection claim.  For the Second Amendment claim, the dissent would hold that the FSA is subject to nothing more than intermediate scrutiny.  The dissent noted that no precedent of the Supreme Court or the Fourth Circuit compelled strict scrutiny, and found that intermediate scrutiny was appropriate in light of decisions of other courts of appeals.  For the Equal Protection claim, the dissent would remand for further analysis under rational basis review rather than solely focusing on whether the officers and the public are similarly situated.