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Wyoming Attorney General Joins Important Gun Rights Brief

In mid-November, Wyoming Attorney General Peter Michael joined an amicus (friend-of-the-court) brief filed in a Maryland case that will soon be heard in the United States Court of Appeals for the Fourth Circuit. The case, Kolbe v. O’Malley, challenges a law recently enacted in Maryland that bans numerous semi-automatic rifles in the state and limits detachable magazine capacity to 10 rounds. Patrick Morrisey, attorney general for the state of West Virginia, took point on the brief, and 19 other states joined along with Wyoming. The lawsuit itself is led by a coalition of gun owners, gun dealers, gun clubs and interest groups.

This is the second time this year that our AG—who is appointed by the governor—has intervened in a lawsuit originating in another state with unequivocal support for gun rights. In February, AG Michael led a coalition of states and filed a brief in the case Drake v. Jerejian, which challenged New Jersey’s requirement that one must demonstrate a “justifiable need” to carry a handgun before being issued a concealed carry permit by a sheriff. Unfortunately, the United States Supreme Court declined to hear the case, which allowed the Third Circuit’s decision upholding the New Jersey law to stand. 

The Kolbe case is more serious, for it involves an actual gun ban, prohibiting even the AR-15, a common and popular rifle, from possession in one’s home. The states’ brief calls for the Fourth Circuit to apply strict scrutiny to the law, the most difficult for the government to overcome. (Often, in free speech cases, when a court decides that strict scrutiny applies, the case is practically over and the law in question is overturned.) The brief also argues that the Maryland law cannot even survive intermediate scrutiny, because it so closely similar to the District of Columbia v. Heller case, which overturned D.C.’s gun ban and affirmed the Second Amendment as an individual right. 

Gun litigation continues across the country against various state laws, almost always occurring in federal court because the Second Amendment is at issue. (The Supreme Court’s follow-up case to HellerMcDonald v. City of Chicago, ruled that the Second Amendment applies to state and local laws pursuant to the Fourteenth Amendment.) Magazine limits have passed in states other than Maryland over the past few years, including our neighbor Colorado. The lawsuit challenging Colorado’s limit—led by a majority of county sheriffs in the state—lost at federal district court and is now before the Tenth Circuit Court of Appeals. Heller upheld the Second Amendment, but there is still plenty of danger in the details of just how far the courts will respect the right. 

Although at the federal level gun control is a largely dormant issue (all the more, I suspect, after the election earlier this month), these state cases could have serious implications years from now. For example, if the Maryland law is upheld in Kolbe, its precedent could allow the federal government to ban the interstate sale of rifles like the AR-15, and even go so far as to impose a national magazine limit. Again, this is not an immediate concern, but such regulation would be antithetical to gun rights, and a far cry from firearms policy in Wyoming. So, Kolbe is indeed a case most worthy of Wyoming’s input, and will hopefully nip gun bans and magazine limits in the bud before they become a national issue.

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Monday, 23 October 2017
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