The U.S. Supreme Court on Monday let stand without comment 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.
The justices declined to hear gun-rights advocates’ appeal of the 4th U.S. Circuit Court of Appeals’ conclusion the ban on the high-powered guns and ammunition quantity does not implicate the Second Amendment right to keep and bear arms due to the weapons’ lethal ferocity “most useful in military service.”
In their failed petition for Supreme Court review, the advocates told the justices “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,”
The advocates, represented by lead attorney John Parker Sweeney, added in the court document that “under the 4th Circuit’s test, Congress could have outlawed muskets as useful in military service. This would eviscerate the Second Amendment.”
In successfully urging the justices to deny review, Maryland Attorney General Brian E. Frosh argued 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.”
The Supreme Court’s denial of the petition for review does not constitute a decision on the merits of either argument. The case was docketed at the Supreme Court as Stephen V. Kolbe et al. v. Lawrence J. Hogan Jr. et al., No. 17-127.
Frosh said Monday he is “extremely pleased that the justices let the “very strong” 4th Circuit decision stand.
“It is a victory for Maryland,” he added. “It will make our citizens safer and hopefully serve as a model to other jurisdictions around the country.”
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.
The National Rifle Association’s legislative arm said the high court’s refusal to hear the appeal will not stop the NRA’s defense of the right to bear arms.
“Maryland’s ban on commonly owned firearms and magazines violates our fundamental, individual right to keep and bear arms for self-defense,” the NRA’s Institute for Legislative Action stated. “The court’s decision in District of Columbia v. Heller clearly stated that arms in common use for lawful purposes are protected by the Second Amendment and thus cannot be subject to an outright ban. We will continue fighting to ensure that the Second Amendment freedoms of law-abiding Americans are respected in the courts.”
Sweeney, the gun-rights advocates’ attorney, did not return telephone and email messages seeking comment Monday. He is with Bradley Arant Boult Cummings LLP in Washington.
Also Monday, the Supreme Court, without comment, declined to hear a challenge to a Florida law prohibiting handguns from being carried openly in public. The justices have not heard a case concerning the reach of the Second Amendment since 2010.
Divided 4th Circuit
In its 10-4 decision in February in Kolbe, 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.