A federal appeals court Tuesday upheld the constitutionality of Maryland’s ban on military assault-style weapons and high capacity magazines, those carrying more than 10 rounds of ammunition.
In its 10-4 decision, the 4th U.S. Circuit Court of Appeals said the Second Amendment’s right to “keep and bear arms” is not implicated by the state’s prohibition in its 2013 Firearm Safety Act, citing the Supreme Court’s 2008 decision in District of Columbia v. Heller, finding a right to have handguns in the home for self-protection.
“(W)e are convinced that the banned assault weapons and large capacity magazines are among those arms that are ‘like’ ‘M-16 rifles’ – ‘weapons that are most useful in military service’ – which the Heller court singled out as being beyond the Second Amendment’s reach,” Judge Robert B. King wrote for the 4th Circuit majority. “Put simply, we have no power to extend Second Amendment protection to the weapons of war that the Heller decision explicitly excluded from such coverage.
“Nevertheless,” King continued, “we also find it prudent to rule that – even if the banned assault weapons and large capacity magazines are somehow entitled to Second Amendment protection – the district court properly subjected the FSA to intermediate scrutiny and correctly upheld it as constitutional under that standard of review.”
Attorney General Brian E. Frosh hailed what he called the 4th Circuit’s “common-sense decision.”
“Military(-style) weapons are not protected by the Second Amendment,” Frosh said. “It’s a very strong decision in that respect.”
Frosh was chief sponsor of the Firearm Safety Act while serving as the chairman of the Senate Judicial Proceedings Committee. He said he expects opponents of the law, which bans 45 assault weapons, to appeal the decision to the Supreme Court but predicted the justices will either decline to hear the appeal or rule the ban constitutional.
“We think it is an easy one for the Supreme Court,” Frosh said.
John Parker Sweeney, an attorney for the ban’s opponents, did not respond immediately to a telephone message seeking comment on the decision and any plans to appeal. Sweeney is with Bradley Arant Boult Cummings LLP in Washington, D.C.
The 4th Circuit’s ruling affirms an August 2014 decision by U.S. District Judge Catherine Blake in Baltimore. Blake ruled she was inclined to find the prohibited weapons are “dangerous and unusual,” which would have removed them from Second Amendment protection. But she said it was not necessary to base her decision on that ground and instead found the ban is “reasonably adapted to (the) substantial government interest” in ensuring public safety.
The full appellate panel’s ruling also renders void a divided decision by a three-judge panel of the 4th Circuit last February to send the case back to Blake to reconsider her decision. Frosh sought an en banc review of the panel’s decision; the full 4th Circuit heard oral arguments in May.
In that 2-1 decision, the 4th Circuit panel said the Second Amendment applies to the ban, which can be deemed constitutional only if it is narrowly tailored to achieve the compelling governmental interest of public safety. The three-judge panel found no significant difference between assault-style weapons and handguns, particularly when used for self-defense in one’s home.
Judge William B. Traxler Jr., in dissent Tuesday, said individuals have a Second Amendment right to possess the weapons and high capacity magazines, as they are “commonly possessed by American citizens for lawful purposes.”
“In my view the burden imposed by the Maryland law is considerable and requires the application of strict scrutiny, as is customary when core values guaranteed by the Constitution are substantially affected,” Traxler wrote.
“I recognize that after such a judicial review, the result could be that the Maryland law is constitutional,” Traxler added. “I make no predictions on that issue. I simply say that we are obligated by Supreme Court precedent and our own to treat incursions into our Second Amendment rights the same as we would restrictions on any other right guaranteed by our Constitution.”
King was joined in the majority opinion by Chief Judge Roger L. Gregory and Judges J. Harvie Wilkinson III, Diana Gribbon Motz, Barbara Milano Keenan, James A. Wynn Jr., Henry F. Floyd, Stephanie D. Thacker, Pamela A. Harris and Albert Diaz.
Traxler was joined in dissent by Judges Paul V. Niemeyer, Dennis W. Shedd and G. Steven Agee.
The full 4th Circuit rendered its decision in Stephen V. Kolbe et al. v. Lawrence J. Hogan Jr. et al., No. 14-1945.