Today the Supreme Court let stand the Fourth Circuit’s holding in Kolbe v. Hogan that semi-automatic rifles are not constitutionally protected “arms,” and in doing so declared the Second Amendment guarantees only a second-class right.
While Kolbe v. Hogan was but one of four circuit court decisions to have upheld state or local bans on semi-automatic rifles, this case differed greatly from its predecessors. In Kolbe, a case challenging Maryland’s “assault weapon” ban, the full Fourth Circuit held that the AR-15 and the semiautomatic AK-47 (and other banned semi-automatic rifles) are “not constitutionally protected arms” because they are “weapons that are most useful in military service.” Conversely, the Second, Seventh, and DC circuits all held semi-automatic rifles are protected by the Second Amendment, yet bans were still justified by the governmental interest supposedly advanced.
A four-judge dissent in Kolbe eviscerated this reasoning, and rightly so. Kolbe’s analysis directly conflicts with the Supreme Court’s holding in Heller that the Second Amendment protects “firearms commonly used for a lawful purpose.” The prevalence of lawfully used AR-15s and semiautomatic AK-47s clearly meets the Heller standard for garnering Second Amendment protection. The Fourth Circuit’s reasoning is also at odds with that of three other circuit courts, making Kolbe the ideal vehicle for the Supreme Court to clarify Second Amendment jurisprudence, as I argued in detail here.
Yet the Supreme Court denied review in Kolbe without comment, although not even two years ago, when the Supreme Court refused to hear an appeal from the Seventh Circuit’s assault-rifle-ban decision, Justice Clarence Thomas issued a dissent and publicly criticized his fellow justices for denying the petition for review: “The Court’s refusal to review a decision that flouts two of our Second Amendment precedents stands in marked contrast to the Court’s willingness to summarily reverse courts that disregard our other constitutional decisions.”
This time around, though, Thomas uttered not a word. Nor did his fellow justices. Frankly, from a legal perspective, it makes no sense. Kolbe’s disregard for Supreme Court precedent far surpassed that seen in the Seventh Circuit’s Friedman decision. The Fourth Circuit’s ruling in Kolbe also established a further split in the circuits concerning the appropriate standard for judging laws under the Second Amendment. Normally, the Supreme Court would hear an appeal in such circumstances, if only to clarify the controlling standard.
But these aren’t normal times. With mass shootings—which while tragic, cumulatively still don’t amount to a patch on the handgun violence in Chicago in just one year—sane conversations about the constitutional right to bear arms are scarce. Now the Supreme Court has made clear it wants no part in that discussion.
Much like the dog that didn’t bark in the work of Holmes—Sherlock, not Oliver Wendell—the eardrum-shattering silence of the Supreme Court in denying review in Kolbe v. Hogan signaled the justices’ capitulation to the tyranny of pundits, politicians, and a small but vocal populace.