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Frosh defends assault weapons ban against Second Amendment attack

Attorney General Brian E. 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. (The Daily Record/File Photo)

Maryland Attorney General Brian E. Frosh on Friday defended the constitutionality of the state’s ban on semiautomatic assault-style weapons against a U.S. Supreme Court challenge by gun rights advocates who say the prohibition violates the right to keep and bear arms.

In papers filed with the justices, Frosh urged the high court to deny the advocates’ request that it review and overturn a lower court ruling upholding the ban as promoting the state’s goal of ensuring public safety without encroaching on what the Supreme Court has held to be the constitutional right of law-abiding citizens to possess handguns in their home for self-defense.

The advocates, in their petition for review, said the Second Amendment right makes no distinction between handguns and the assault-style weapons – an argument Frosh stated the Supreme Court should not even consider in light of the more than 200 people killed nationwide since 2012 in mass shootings committed with the firearms.

“This court’s invalidation of a complete ban of in-home possession of handguns – which ‘the American people have considered … to be the quintessential self-defense weapon’ – does not prevent legislatures from reaching a different conclusion about a limited class of military style semiautomatic rifles associated with mass shootings,” Frosh wrote, quoting from the Supreme Court’s 2008 decision in District of Columbia v. Heller. “Residents of Maryland retain an abundant choice of firearms for self-defense, including ‘handguns, which are the most popular weapon chosen by Americans for self-defense in the home.’”

Assistant Maryland Attorney General Julia D. Bernhardt, Frosh’s litigation chief, is the state’s counsel of record before the high court in the case.

The advocates, in their petition for Supreme Court review, said the assault-style weapons are constitutionally protected when 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.

“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.”

Frosh’s office had initially waived the state’s right to respond to the advocates’ petition unless the high court requested a response. The court made the request in January.

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 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.

The advocates’ pending petition marks their second high court challenge to Maryland’s 2013 ban. 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 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.

In addition, President Joe Biden appointed Ketanji Brown Jackson this year to succeed Justice Stephen G. Breyer upon his announced retirement when the Supreme Court issues its final decision of this term, expected in late June. It is unclear whether the high court will vote on the advocates’ petition before Breyer’s departure.

For an appeal to be granted review, at least four of the high court’s nine justices must vote in favor of review.

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 urging the high court to deny the advocates’ appeal, Frosh cited many deadly events involving the assault-style weapons, including the Dec. 14, 2012, slaying of 20 first graders and six employees at Sandy Hook Elementary School in Newtown, Connecticut; the June 12, 2016, killing of 49 people at the Pulse nightclub in Orlando, Florida; the  Oct. 1, 2017, slaying of 58 people at a Las Vegas, Nevada, music festival; and the Feb. 14, 2018, killing of 17 students and staff at Marjory Stoneman Douglas High School in Parkland, Florida.