Steve Lash//December 22, 2021
//December 22, 2021
Gun rights advocates are again urging the U.S. Supreme Court to overturn Maryland’s ban on semiautomatic assault-style weapons, with the possibility that a reconstituted and more conservative court will review the lower court decision it left undisturbed four years ago.
In papers filed with the justices last week, the advocates said the state’s prohibition on the guns they contend are commonly owned for self-defense violates the Constitution’s Second Amendment right to keep and bear arms.
The 4th U.S. Circuit Court of Appeals rejected that argument in February 2017, saying in its 10-4 decision that the constitutional right does not apply to firearms “most useful in military service.” Nine months later, the Supreme Court declined without comment to review the 4th Circuit’s ruling in Kolbe v. Hogan.
The advocates renewed their challenge in the U.S. District Court in Baltimore last year. They correctly predicted in court papers that their argument would be rejected both at the trial stage and on appeal at the 4th Circuit in light of the Kolbe decision.
The 4th Circuit’s expected rejection in September enabled the advocates to again seek the high court review they were previously denied.
“The question presented in this case is of extraordinary importance, because it concerns the constitutional right to possess, in the home, the most popular rifle-type in the nation, owned by millions of Americans for self-defense,” wrote David H. Thompson, the advocates’ lead attorney, in the petition for Supreme Court review.
“Yet, the nearly 85 million people living in Maryland and the … other states (and the District of Columbia) with similar bans on common semi-automatic rifles are flatly prohibited from keeping or bearing these arms, solely because they live on one side of a state line rather than the other,” added Thompson, of Cooper & Kirk PLLC in Washington. “That situation is intolerable, and only this court’s intervention can correct it.”
In addition to Maryland, assault-style weapons are banned in California, Connecticut, Hawaii, Massachusetts, New Jersey and New York, according to the Giffords Law Center to Prevent Gun Violence.
Maryland Attorney General Brian E. Frosh, who has until Jan. 19 to respond to the advocates’ request for Supreme Court review, said Wednesday that he regards the ban’s constitutionality as “settled law.”
“They are ‘weapons of war,’” Frosh said, quoting from the 4th Circuit’s Kolbe decision. “States have the power to put reasonable restrictions on their ownership and use.”
An outright ban on the weapons is reasonable because “they are incredibly efficient at killing people,” Frosh added. “It is hard to imagine that the Supreme Court would say it’s OK, go out and get some.”
Frosh, then a state senator, was chief sponsor of the 2013 Firearm Safety Act and shepherded the bill – which bans 45 assault-style weapons, including the AR-15 — through the Senate as chair of the chamber’s Judicial Proceedings Committee.
Adam Kraut, an attorney for the Sacramento, California-based Firearms Policy Coalition, disagreed with Frosh in a statement Wednesday, citing 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.
“As our initial complaint and subsequent appeal to the 4th Circuit acknowledged, the lawsuit was brought on in an attempt to overrule Kolbe, which was wrongly decided, and vindicate the Second Amendment rights of our plaintiffs,” Kraut stated. “The firearms banned by Maryland’s laws are commonly possessed and used for lawful purposes which places them squarely under constitutional protection. We are hopeful that the court will grant certiorari (review), despite having previously denied the Kolbe petition, in order to finally resolve the disarray of the lower courts and their failure to faithfully apply Heller’s test when it comes to these types of firearms.”
The justice have not said when they will vote on the advocates’ request for review. The appeal is docketed at the Supreme Court as Dominic Bianchi et al. v. Brian E. Frosh et al., No. 21-902.
The Supreme Court that will consider the advocates’ request is markedly different than the composition of the panel that denied the appeal four years ago. Justice Anthony M. Kennedy retired and Justice Ruth Bader Ginsburg died, leading to then President Donald Trump’s appointments of Justices Brett M. Kavanaugh in October 2018 and Amy Coney Barrett in October 2020.
For an appeal to be granted review, at least four of the high court’s nine justices must vote in favor of review.
In addition to the Firearms Policy Coalition, the advocates mounting the Supreme Court appeal include 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.C