Kolbe v. O’Malley: Amicus Brief in Support of Maryland Law Prohibiting Assault Weapons and Large Capacity Ammunition Magazines

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Case Information: Kolbe, et al. v. O’Malley, et al., No. 14-1945 (4th Cir., Amicus Brief Filed Jan. 7, 2015)

At issue: This case is a challenge to Maryland’s Firearm Safety Act of 2013, passed in the wake of the tragedy at Sandy Hook Elementary School, which, among other things, prohibits assault weapons and large capacity ammunition magazines. The law was upheld by the district court and plaintiffs have appealed to the Fourth Circuit.

The Law Center’s Brief: Our amicus brief, filed along with Marylanders to Prevent Gun Violence, defends Maryland’s law by arguing that assault weapons and large capacity ammunition magazines are military-style weapons, ill-suited to self-defense purposes, that fall outside of the scope of the Second Amendment. The brief makes the argument that, even if these weapons are protected by the Second Amendment, the law is constitutional because it is reasonably related to the important government interest of protecting citizens and law enforcement officers from gun violence.

Fourth Circuit Upholds Restriction on the Public Possession of Handguns

In a closely watched case, the U.S. Court of Appeals for the Fourth Circuit issued a significant decision on March 21, in which it affirmed the ability of state law enforcement to limit the carrying of guns in public places. Reversing the decision of a federal district court in Maryland, the circuit court held that a requirement under Maryland law – that an individual demonstrate a “good and substantial reason” in order to qualify for a permit to carry a handgun in public – does not violate the Second Amendment.

Notably, the Fourth Circuit rebuked the district court for making a “trailblazing pronouncement that the Second Amendment right to keep and bear arms for the purpose of self-defense extends outside the home” and it advised courts that they should await direction from the U.S. Supreme Court before determining whether or to what extent the Second Amendment might protect the possession of firearms in public.

The decision confirms that reasonable restrictions on carrying of handguns in public are constitutional, even if they strictly limit the number of individuals who may carry a handgun. As the Fourth Circuit explained, “The State has clearly demonstrated that the good-and-substantial-reason requirement advances the objectives of protecting public safety and preventing crime because it reduces the number of handguns carried in public. That is, limiting the public carry of handguns protects citizens and inhibits crime.”

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Amicus Briefs: Bringing Our Expertise to the Courts

Over the past four years, our nation’s courts have become a major battleground in the debate about gun violence in our communities. Right now, people who want to carry loaded firearms on public streets are forcing judges across the country to question the scope of the Second Amendment. But where should judges turn for guidance in evaluating these claims? The Supreme Court’s landmark Heller decision in 2008 effectively upended the legal understanding of the Second Amendment that had existed for almost eighty years. When it comes to gun litigation, courts are now having to evaluate how to keep our communities safe with little Second Amendment case law to guide them.

The Law Center is helping to fill that void through amicus curiae (“friend of the court”) briefs in significant Second Amendment cases across the country. Because we are the only organization in the country that tracks Second Amendment litigation, national, state, and local firearms laws, and pending firearms legislation nationwide, we have unique expertise that can help courts understand the critical importance of smart laws to prevent gun violence. Through amicus briefs, we can present that expertise to courts shaping the meaning of the Second Amendment.

Amicus briefs enable us to get involved in precedent-setting cases that have nationwide significance, since numerous challenges to similar gun laws are currently pending before courts across the country. We recently filed an amicus brief in the First Circuit Court of Appeals in Hightower v. Boston, in which we argued that a Massachusetts law requiring a license to carry a concealed weapon in public does not violate the Second Amendment. When the court issued its decision upholding the law on August 30th, it became the first federal appellate court in the nation to issue a decision on a Second Amendment challenge to a concealed carry law. Six other federal appellate courts are currently facing similar challenges.  Continue reading

Woollard v. Gallagher Amicus Brief

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Case information:  Woollard v. Gallagher, No. 12-1437 (4th Cir., Filed June 22, 2012)

At issue:  Challenging Maryland’s open carry lawWoollard involves an appeal from the District Court for the District of Maryland, which declared Maryland’s concealed carry permit law to be an impermissible infringement on the Second Amendment.  The law required that in order to be granted a permit, the applicant must have “a good and substantial reason.”  The court held that the Second Amendment extended to places outside the home, and applied intermediate scrutiny, finding the law “insufficiently tailored to the State’s interest in public safety and crime prevention.”  The court rejected Plaintiff’s claim that the First Amendment doctrine of prior restraint applied to the law.

Law Center’s Brief:  Our brief, filed in support of Maryland’s concealed carry law, argues that the right recognized in District of Columbia v. Heller is limited to the home.  The brief explains that public carry was not understood to be part of the right both before and at the time of the adoption of the Second Amendment.  The law at issue is “presumptively lawful” according to Heller because it is part of the longstanding tradition of similar restrictions, including ones upheld by 19th century courts.  The brief argues that the District Court erred in expanding the right beyond Heller at odds with the judicial restraint endorsed by the 4th Circuit and because similar restrictions have been held constitutional post-Heller.

Alternatively, the brief argues that even if the right extends to carrying a handgun in public the law would easily be upheld under intermediate scrutiny.  Intermediate scrutiny only requires a reasonable fit between a regulation and a substantial government interest.  Because the law allows those who demonstrate a need to carry a weapon in public to do so, it fits reasonably between the right and public safety.  Finally, the brief argues that the prior restraint doctrine does not apply because the Second Amendment affords a private right, rather than the public right under the First Amendment, and because laws like Maryland’s statute are presumptively lawful, while those infringing on the First Amendment are presumptively invalid.