High court returns Md. assault weapons ban challenge to 4th circuit, cites Bruen

Listen to this article

The U.S. Supreme Court on Thursday sent a constitutional challenge to Maryland’s ban on semiautomatic assault-style weapons back to a lower court with instructions that it apply the justices’ broad interpretation of the Second Amendment right to keep and bear arms that they issued last week.

The 4^th U.S. Circuit Court of Appeals had upheld the ban, saying it promotes Maryland’s goal of protecting public safety without encroaching on what the Supreme Court has held to be the constitutional right of law-abiding citizens to possess handguns for self-defense.

But the high court ruled in New York State Rifle & Pistol Association Inc. v. Bruen on June 23 that restrictions on gun possession must comport not only with the state’s interest but be in keeping with the constitution’s text, history and tradition of firearms restrictions.

With regard to handguns, the court held in Bruen that text, history and tradition does not bar law-abiding citizens from possessing the weapons outside their home.

Left unanswered – and now headed back to the 4^th Circuit – is whether Maryland’s assault weapons ban passes the text, history and tradition test.

The case is docketed in the 4th Circuit as Dominic Bianchi et al. v. Brian E. Frosh et al., No. 21-1255.

Maryland Attorney General Brian E. Frosh said in a statement after the Supreme Court’s remand that the ban “prohibits lethal, military-style firearms that are not necessary or appropriate for self-defense, hunting or recreation. “

“They also pose grave risks to public safety, as recent mass shootings in other states have made clear,” Frosh stated. “ Notwithstanding the Supreme Court’s recent ruling in Bruen, Maryland’s law banning assault weapons remains in effect and my office will continue to vigorously defend its constitutionality in the courts.  Marylanders have a right to be protected from these dangerous weapons.”

But gun rights advocate Mark W. Pennak said he expects the ban to be overturned if not by the 4^th Circuit then by the Supreme Court.

“There is no text, history, tradition of banning these certain types of rifles,” said Pennak, an attorney and president of Maryland Shall Issue Inc. “I don’t know what the Court of Appeals will do, but I think they (the state) should lose.”

Pennak said the semi-automatic rifles, like handguns, are in common-use by law-abiding citizens for self-protection.

Maryland Shall Issue is not a party in the case headed back to the 4^th Circuit, having lost in a prior challenge to the ban. But Pennak said, “We are cheering from the sidelines.”

The advocates that mounted 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’ appeal marked their second high court challenge to Maryland’s 2013 ban. In November 2017, the Supreme Court declined without comment to review the 4^th 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 Supreme Court challenge.

The Supreme Court that sent the case back to the 4^th Circuit was markedly different than the composition of the panel that denied the appeal five years ago. Justice Anthony Kennedy retired and Justice Ruth Bader Ginsburg died, leading to then-President Donald Trump’s appointments of Justices Brett Kavanaugh in October 2018 and Amy Coney Barrett in October 2020.

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 papers filed with the Supreme Court in April, 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.

Frosh’s filing predated the May 24 slayings of 19 students and two teachers by an 18-year-old man armed with an AR-15 at Robb Elementary School in Uvalde, Texas.