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Sen. Brian Frosh
Attorney General Brian E. Frosh (The Daily Record/Danny Jacobs)

Federal judge hears challenge to Md. ban on dozens of assault weapons

A state ban on certain assault-style weapons and magazines advances Maryland’s interest in public safety, a lawyer for the state argued Tuesday in seeking to throw out a challenge to the law.

Matthew J. Fader said the ban is similar to other laws nationwide banning concealed weapons or restricting the mentally ill carrying weapons, measures previously found by other courts to be constitutional.

“This law does not infringe on any major component of Second Amendment rights,” Fader said in front of a packed courtroom in the U.S. District Court in Baltimore.

The plaintiffs, Fader added, “want to buy and sell AR-15s and they are upset the law won’t allow them to do so.”

But a lawyer for the plaintiffs said the General Assembly had “precious little evidence” before it to confirm the ban would be effective, meaning lawmakers overreached in restricting residents’ right to bear arms.

“Mr. Fader’s argument is, laws governing Maryland can turn on junk science, and that’s OK,” said John Parker Sweeney. “The government does not have the right to tell citizens they can’t possess properly used firearms.”

The 2013 law, introduced following the 2012 shooting deaths of 20 children and six adults at Sandy Hook Elementary School in Connecticut, bans 45 types of assault-style weapons as well as magazines that can hold more than 10 rounds.

Fader, a deputy chief in the civil litigation division of the Office of the Attorney General, said less than 1 percent of Marylanders own the guns subject to the ban, which include AK-47s. Fewer than 3 million Americans own the guns, which Fader said have been “identified as particularly useful in military-style assaults, mass shootings, and shooting of law enforcement officials.”

“The firearms at issue are used only extremely rarely in self-defense cases,” Fader said.

Countering that argument, Sweeney told the court that the state’s own experts admitted during depositions that police officers were more likely to be killed in a car crash or with a handgun than with a semi-automatic weapon. Similar bans have not been shown to be effective at the state or national levels, he said.

“If the firearms in question have not been shown to be disproportionately involved in military-style assaults, mass shootings or shooting of law enforcement officials, then there is no causation to infringe on constitutional rights,” said Sweeney, a partner with Bradley Arant Boult Cummings LLP in Washington, D.C.

A survey of 22,000 gun owners by the National Shooting Sports Foundation, a plaintiff in the case, found the top-two uses for the banned weapons are target shooting and self-defense, according to Sweeney.

But when asked by Judge Catherine C. Blake for examples of the banned weapons being used in self-defense, Sweeney called the issue a “red herring.”

“It is not use that is the linchpin here,” he said. “The issue here is whether the firearms and magazines banned here are typically possessed.”

Blake did not say when she would rule in the case, Kolbe, et al., v. O’Malley, et al., 1:13-cv-02841-CCB.

Among the interested observers at the two-hour hearing was Sen. Brian E. Frosh, D-Montgomery, a sponsor of the weapons ban and Democratic nominee for attorney general. Should Frosh win the General Election this November, he would be leading the defense of the law in future court proceedings.

Frosh said lawmakers used “predictive judgment” in deciding to ban the assault-style weapons. While a police chief saying the weapons pose a threat to officers might not be considered expert testimony in a courtroom, “that’s good enough for me,” Frosh said.

“The plaintiffs are saying, ‘Who are you going to believe, me or your own eyes?’” he added.

The law also requires new gun purchasers to be fingerprinted, making Maryland the sixth state with such a provision. The lawsuit does not challenge that part of the law.