The U.S. Supreme Court has shown interest in hearing gun rights advocates’ contention that Maryland’s ban on semiautomatic assault-style weapons violates the constitutional right to keep and bear arms, a Second Amendment argument the high court declined to consider five years ago.
Maryland Attorney General Brian E. Frosh’s office on Jan. 3 waived the state’s right to respond to the constitutional challenge unless the justices specifically requested a response. On Friday, the Supreme Court made the request as it considers whether to hear the advocates’ appeal of a lower federal appeals court decision — first issued in February 2017 — that the Second Amendment does not apply to firearms “most useful in military service.”
In November 2017, the Supreme Court declined without comment to review the 4th U.S. Circuit Court of Appeals decision in that case, Kolbe v. Hogan.
The advocates renewed their challenge in the U.S. District Court in Baltimore in 2020. 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, setting the stage for their renewed and pending Supreme Court challenge.
The attorney general’s requested response is due at the Supreme Court on Feb. 14. The justices have not stated when they will vote on the advocates’ petition for their review.
The case is docketed at the high 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 five 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 their petition for Supreme Court review, the advocates contended that the banned firearms are not weapons of war but guns legitimately and constitutionally possessed by law-abiding citizens for personal protection.
“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.
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.
In discussing the advocates’ renewed Supreme Court challenge last month, Frosh said the constitutionality of a ban on high-powered weapons “incredibly efficient at killing people” is “settled law.”
“States have the power to put reasonable restrictions on their ownership and use,” he added.
The advocates mounting the Supreme Court appeal include the Sacramento, California-based Firearms Policy Coalition, 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.