In a Maryland gun-rights case that will likely be appealed to the Supreme Court, attorneys for gun owners and the state battled before a federal appeals court Wednesday over the constitutionality of the state’s ban on assault-style weapons and large-capacity magazines and over whether a judge who upheld the ban applied the correct legal standard.
Gun-rights supporters, represented by attorney John Parker Sweeney, told the 13 judges of the 4th U.S. Circuit Court of Appeals the ban violates the Second Amendment right to bear arms because it applies to firearms that many Marylanders keep in their homes for protection.
Assistant Maryland Attorney General Matthew J. Fader countered the General Assembly validly prohibited the weapons because they are used rarely for self-defense and often for mass shootings and killing police officers.
Both the gun-rights advocates and Maryland Attorney General Brian E. Frosh have said they would appeal an adverse ruling to the Supreme Court.
“We will take it wherever we have to take it to make sure the law is upheld,” Frosh said in an interview Wednesday, adding he is optimistic that the 4th Circuit will rule for the state. “We’ll do whatever it takes to keep the people of Maryland safe and to keep our law in force.”
The Richmond, Va.-based 4th Circuit typically takes several weeks to issue a ruling.
Maryland lawmakers passed the sweeping Firearm Safety Act after the 2012 Sandy Hook Elementary School massacre in Newtown, Conn. The 2013 measure’s chief sponsor in the General Assembly was Frosh, then a state senator and chair of the Senate Judicial Proceedings Committee.
Gun-rights advocates filed a legal challenge to the provision banning 45 assault weapons and the 10-round limit on gun magazines.
U.S. District Judge Catherine C. Blake upheld the ban in August 2014, calling it “reasonably adapted to [the] substantial government interest” of ensuring public safety. But a divided three-judge panel of the 4th U.S. Circuit Court of Appeals ruled in February that Blake did not apply the proper legal standard.
The panel sent the case back to Blake and ordered her to apply “strict scrutiny,” a more rigorous constitutionality test under which a ban is upheld only if the state can show it is narrowly drawn to achieve a compelling governmental interest.
The state appealed the panel’s decision to the full appeals court.
Drawing the line
Sweeney, the attorney for the gun-rights advocates, argued Wednesday the Maryland General Assembly went too far.
“A statute banning protected arms from the home must fail constitutional review,” he said. “The government cannot ban protected arms from the homes of law-abiding citizens”
Judges asked Sweeney how far that constitutional protection extends.
“If machine guns were not banned and were in the same use as AR-15s, could they be banned?” Judge Dennis W. Shedd asked.
They could not, Sweeney replied.
Judge J. Harvie Wilkinson III said Sweeney seemed to be suggesting that any gun which can be kept at home is out of government’s reach, no matter how dangerous the weapon.
“Your position is so broad that it comes to a point of disabling legislatures from their core function of protecting citizens,” Wilkinson said.
Sweeney said handguns are “more dangerous” than assault weapons because they are used in the vast majority of slayings, yet the U.S. Supreme Court struck down a handgun ban in the nation’s capital. The assault weapons banned by Maryland “are almost never used in crimes,” said Sweeney, of Bradley Arant Boult Cummings LLP in Washington.
But Fader, arguing for the state, said the Supreme Court struck down the D.C. law because handguns “are the quintessential self-defense weapon” and therefore protected despite their use in crimes. Firearms that rank below handguns in the spectrum of self-defense weapons can be more tightly regulated, he said.
The firearms banned under Maryland’s law are “disproportionately used in mass public shootings and in murders of law enforcement,” Fader said.
Wilkinson suggested lawmakers are better equipped than judges to decide which types of firearms are so dangerous that they should be banned. He said gun-rights supporters and gun-control advocates each have plenty of lobbying clout to be heard on the issue.
“The actors in this struggle are not puny, they are not powerless,” Wilkinson said. “Neither side in this political debate is bereft of the most robust conceivable representation.”
Both sides are “muscular and, to a considerable extent in the political argument in this country, pretty evenly matched,” he added.
The case is Stephen V. Kolbe et al. v. Lawrence J. Hogan Jr. et al, No. 14-1945.
The Associated Press contributed to this article.