In their final bid for Supreme Court review, gun-rights advocates have pressed the justices to review and overturn a lower-court decision upholding the constitutionality of Maryland’s ban on military-style assault weapons and high-capacity magazines, those carrying more than 10 rounds of ammunition.
In papers filed with the high court Friday, the advocates took particular aim at the 4th U.S. Circuit Court of Appeals’ conclusion that the ban on the high-powered guns and ammunition quantity does not even implicate the Second Amendment right to keep and bear arms due to the weapons’ lethal ferocity “most useful in military service.”
“Something has gone awry when a court adopts a test for determining the scope of the Second Amendment that would have found muskets unprotected at the founding,” wrote the advocates’ lead attorney, John Parker Sweeney. “That the framers enacting the Second Amendment did not intend the 4th Circuit’s interpretation is patently obvious: Under the 4th Circuit’s test, Congress could have outlawed muskets as useful in military service. This would eviscerate the Second Amendment.”
Sweeney submitted the brief in response to Maryland Attorney General Brian E. Frosh’s request this month the Supreme Court decline to hear the advocates’ appeal of the 4th Circuit’s February decision.
Frosh, in papers filed with the with justices, said the 2013 Maryland Firearm Safety Act comports with the Second Amendment and is in keeping with the Supreme court’s 2008 decision in District of Columbia v. Heller, finding a right to have handguns in the home for self-protection.
“Nothing in Heller suggests that legislatures are rendered powerless to ban these unusually dangerous threats,” Frosh wrote. “As the 4th Circuit found, a ban on military-style assault weapons and large-capacity magazines survives constitutional scrutiny because there is substantial evidence of its fit with the state’s compelling interest in protecting the public.”
But Sweeney, in pressing the justices to hear the appeal, said the 4th Circuit’s military-use standard imposed too onerous a restriction on a constitutional right, thereby “relegating the Second Amendment to second-class status.”
“Any delay in addressing the important question presented by this case will further deprive petitioners and all law-abiding Marylanders of their fundamental right to keep and bear arms,” wrote Sweeney, of Bradley Arant Boult Cummings LLP in Washington. “This court should grant certiorari (review) to confirm that the Second Amendment must be treated with the same dignity and deference afforded all fundamental individual rights.”
The Supreme Court is scheduled to vote Nov. 9 in private conference on whether to hear the advocates’ appeal. The case is docketed at the high court as Stephen V. Kolbe et al. v. Lawrence J. Hogan Jr. et al., No. 17-127.
Frosh, then a state senator, was the chief sponsor of the Maryland Firearm Safety Act and shepherded the bill through the Senate as chair of the chamber’s Judicial Proceedings Committee.
In its 10-4 decision, the 4th Circuit said Heller gives states leeway to regulate the 45 assault weapons restricted under the Maryland law.
“(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.”
In dissent, Judge William B. Traxler Jr. 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.”
The 4th Circuit’s ruling affirmed 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.