Gun rights advocates have taken aim again at Maryland’s assault weapons ban, hoping a reconstituted and more conservative U.S. Supreme Court will consider and overturn a 2017 lower court ruling upholding the constitutionality of the state’s prohibition.
In papers filed Tuesday, the advocates are urging the U.S. District Court in Baltimore to declare the weapons ban a violation of the Second Amendment right to keep and bear arms.
The advocates – many of whom from out of state – stated they are undeterred by the 4th U.S. Circuit Court of Appeals decision that rejected their argument three years ago in Kolbe v. Hogan, a ruling that the Supreme Court then let stand without comment.
“To be sure, Plaintiffs acknowledge that the result they seek is contrary to Kolbe v. Hogan, but that case was wrongly decided,” the advocates wrote. “They therefore institute this litigation to vindicate their Second Amendment rights and to seek to have Kolbe overruled.”
The 4th Circuit’s composition has remained largely unchanged since its 10-4 ruling in 2017, thus giving the advocates very little hope for a different decision from that court, which covers Maryland, Virginia, West Virginia and the Carolinas.
However, the U.S. Supreme Court has changed markedly since it chose not to consider the advocate’s appeal three years ago. Justice Anthony M. Kennedy retired and Justice Ruth Bader Ginsburg died, leading to President Donald Trump’s appointments of Justices Brett M. Kavanaugh in October 2018 and Amy Coney Barrett last October.
The pending litigation presents the Supreme Court with “another bite at the apple,” said Adam Kraut, an attorney with the Sacramento, California-based Firearms Policy Coalition, which is challenging Maryland’s ban.
He noted the nine-member high court’s changed composition and recent lower court decisions that read the Second Amendment more broadly than did the 4th Circuit.
“It is unlikely that the 4th Circuit would come to a different conclusion” than it did in Kolbe, Kraut said Wednesday.
“Ultimately it is a question of whether the Supreme Court would be inclined” to hear the appeal and overturn Kolbe, he added.
The coalition is joined in the challenge by three Maryland gun owners; the Field Traders gun store in Anne Arundel County; and two Bellevue, Washington-based groups, the Second Amendment Foundation and the Citizens Committee for the Right to Keep and Bear Arms.
Maryland Attorney General Brian E. Frosh, then a state senator, was chief sponsor of the 2013 Firearm Safety Act and shepherded the bill – including its ban on assault-style weapons — through the Senate as chair of the chamber’s Judicial Proceedings Committee.
Frosh, a named defendant in the pending district court case, predicted that the constitutional challenge will be rejected again.
The assault weapons ban is “a common-sense law,” Frosh said Wednesday.
“These are weapons of war,” he added. “Assault weapons are not protected by the Second Amendment.”
In the district court filing, the advocates stated that the 45 banned weapons – including the AR-15 — are commonly used for home defense and hunting.
“The firearms at issue in this case are the sorts of bearable arms in common use for lawful purposes that law-abiding people possess at home by the millions,” the advocates wrote.
“When seconds count, and the police are minutes or hours away, if they come at all…the people have a constitutional right to make use of common firearms for effective self-defense and not be disarmed by the regulatory scheme and its enforcement by (the state) defendants,” the advocates added. “The right to keep and bear common firearms guaranteed under the Bill of Rights cannot be subjected to laws and regulations that prohibit ordinary, law-abiding citizens from keeping and bearing common firearms – particularly when such schemes place these citizens under constant threat of criminal sanction for violating them.”
In its Kolbe decision, the 4th Circuit cited the Supreme Court’s 2008 ruling in District of Columbia v. Heller that the Second Amendment permits law-abiding citizens to possess handguns in the home for self-defense.
“(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, 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 C. 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 pending district court challenge is docketed as Firearms Policy Coalition Inc. et al. v. Brian E. Frosh et al., No. 1:20-cv-03495-JKB.