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Maryland’s ban on semiautomatic assault-style weapons must be struck down as unconstitutional because it is not in keeping with the Second Amendment’s text, history and tradition of firearms regulations as delineated by the U.S. Supreme Court this summer, gun rights advocates told a federal appeals court Monday.
“The rifles banned by Maryland are among the most popular firearms in the country, owned by tens of millions of Americans for lawful purposes including self-defense and defense of the home,” the advocates stated in papers filed with the 4th U.S. Circuit Court of Appeals. “Maryland has made clear that it does not like the people’s desire for these firearms but that does not change the fact that they are bearable arms that the American people overwhelmingly favor and have a right to possess.”
The advocates had lost an earlier challenge in the 4th Circuit, which upheld the ban as promoting Maryland’s goal of protecting public safety without encroaching on what the high court has held to be the constitutional right of law-abiding citizens to possess handguns for self-defense.
But with the advocates’ appeal pending before them, the justices ruled on June 23 that restrictions on gun possession must comport not only with a state’s interest but with the Constitution’s text, history and tradition of firearms restrictions when the Second Amendment was adopted in 1791 or when the 14th Amendment extended the right to keep and bear arms to the states in 1868.
Without comment, the Supreme Court sent the challenge to Maryland’s ban back to the 4th Circuit with instructions that it review the prohibition’s constitutionality in light of the justices’ decision in New York State Rifle & Pistol Association Inc. v. Bruen.
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The advocates, in their 4th Circuit filing, called Maryland’s ban unconstitutional under Bruen because gun restrictions in the 18th and 19th centuries applied only to “dangerous and unusual weapons” that are “not in common use.”
The 45 weapons prohibited under Maryland’s law – including the AR-15 – are in common use by law-abiding citizens and not unusual, the advocates stated.
“There is a venerable tradition in this country of lawful private ownership of semiautomatic rifles,” wrote the advocates’ attorney, David H. Thompson, of Cooper & Kirk PLLC in Washington.
“The firearms that Maryland bans are not distinguishable for being more dangerous than rifles that the state does not ban,” Thompson added. “The rifles Maryland bans also fire at the same rate as all other semiautomatics – one round for each pull of the trigger.”
Maryland Attorney General Brian E. Frosh’s office declined to comment Tuesday on the advocates’ filing, citing the ongoing litigation and the office’s preparation of a written response due at the 4th Circuit on Sept. 12.
The 4th Circuit has not said when it will rule. The case is docketed at the 4th Circuit as Dominic Bianchi et al. v. Brian E. Frosh et al., No. 21-1255.
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The advocates mounting the challenge are 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 assault-weapons ban is one of three Maryland firearm statutes or regulations gun rights advocates have targeted in light of the Bruen decision.
Shortly after the ruling, Maryland abandoned its requirement that law-abiding applicants seeking a permit to carry guns outside the home provide a good and substantial reason, such as their lives being threatened. The Supreme Court had struck down New York’s similar regulation in Bruen.
Advocates are also waging a 4th Circuit challenge to Maryland’s licensing requirements for would-be handgun purchasers as an infringement on their constitutional right to keep and bear arms.
The appeal of the assault-weapons ban marks the advocates’ second legal challenge to Maryland’s 2013 prohibition. In November 2017, the Supreme Court declined without comment to review the 4th Circuit’s 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.
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The Supreme Court that sent the case back to the 4th Circuit in June 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 ban-containing 2013 Firearm Safety Act and shepherded the bill 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 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.
