As of this week two major gun violence cases were decided. The judiciary plays an important role within the gun violence prevention movement.
- In Wollschlaeger, a panel of the U.S. Court of Appeals for the Eleventh Circuit had upheld the Florida law that (among other things) prohibited doctors from asking their patients about guns. The law had been challenged by doctors and others as a violation of their First Amendment right to freedom of speech. After two successive petitions for en banc review (i.e., review by all of the judges comprising the Eleventh Circuit), the panel revised its opinion to continue to uphold the law, but on different grounds. Finally, the full court heard argument a year ago, and last week issued its 10-1 decision striking down the law.
- In Kolbe, gun owners challenged a Maryland law, enacted after Newtown, that banned assault weapons and large-capacity magazines (ones that could hold more than 10 bullets). The district court upheld the law. A panel of the Court of Appeals for the 4th Circuit reversed, holding that the trial court had been too deferential, in subjecting the law to a level of review called “intermediate scrutiny.”
The Court of Appeals said the district court should have applied “strict scrutiny” to a law that infringed on constitutional (i.e., Second Amendment) rights. This decision also departed from rulings of every other federal appellate court on this point. The U.S. Supreme Court had declined to review any of those decisions; but the 4th Circuit decision created a conflict in the rulings of different circuits, making it more likely that the Supreme Court would intervene to make the law consistent across the whole country.
Fortunately, the 4th Circuit granted en banc review, and in its decision, treated assault weapons and large-capacity magazines as “weapons of war” not entitled to any Second Amendment protection under Heller. In the alternative, the court held that even if those weapons are entitled to some constitutional protection, the MD law banning them is constitutional under an intermediate standard of scrutiny.
There were dissenting and concurring opinions, but since the majority opinion is consistent with those of other courts of appeals, it’s unlikely that the Supreme Court will grant review.