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Frosh defends assault weapons ban, cites 19th century knife restrictions

Maryland Attorney General Brian Frosh walks on the House of Delegates chamber floor before the annual State of the State address on Jan. 30, 2019, in Annapolis. (AP Photo/Patrick Semansky, File)

Maryland Attorney General Brian E. Frosh (AP Photo/Patrick Semansky, File)

Maryland’s ban on semiautomatic assault-style weapons passes constitutional muster because it is in keeping with the nation’s history of restricting “extraordinarily dangerous” offensive weapons dating to the bowie knife in the early 1800s, the state’s attorney general told the 4th U.S. Circuit Court of Appeals last week.

Brian E. Frosh’s historical defense of the weapons ban followed the U.S. Supreme Court’s ruling last summer that gun regulations are constitutionally valid if they comport with the 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.

In papers filed with the 4th Circuit Thursday, Frosh said several states restricted bowie knives between those years due to the “uniquely harmful damage” they could inflict on the human body.

“Just as novel weapons in the 1830s triggered novel regulation, the advent of mass shootings with assault rifles in the late 20th century created a need for regulation to address those heightened dangers,” Frosh wrote.

“And just as, in an earlier era, new weapons were regulated because of their damaging potential in offensive use (while having limited self-defense function), assault weapons used in mass shootings inflict carnage on the human body much worse than bullets from non-assault weapons can,” Frosh added. “And just as bowie knives were closely associated with criminality, so too are assault weapons disproportionately used in gang crime, mass shootings, and other crimes.”

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Frosh’s filing came in response to a Second Amendment challenge to the ban from gun rights advocates who told the 4th Circuit shortly after the Supreme Court’s ruling that the assault-style weapons prohibition has no historical analog.

“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 appellate court. “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 it, the Supreme Court 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.

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 are 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.”

But Frosh, in his filing, said assault-style weapons are unlike other rifles in that the banned firearms have undergone “dangerous modifications … to enhance their lethality,” including the ability to accept magazines of more than 10 rounds.

“Between 1771 and 1895, at least five states banned trap guns, spring guns, and guns rigged to discharge by added mechanisms like strings or ropes, suggesting that those modifications heightened the danger posed by the guns above and beyond their ordinary potential,” Frosh wrote. “As technological advancements made it easier to modify firearms to become deadlier and better suited to criminals’ needs, regulations evolved to keep pace.”

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Frosh was joined in the filing by Assistant Attorneys General Robert A. Scott and Ryan R. Dietrich.

The 4th Circuit has scheduled oral arguments in the case for Dec. 6. The appeals court has not said when it will render a decision in Dominic Bianchi et al. v. Brian E. Frosh et al., No. 21-1255.

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.

Other gun rights advocates, including Maryland Shall Issue, are waging a separate 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.

Oral arguments have not yet been scheduled in that case, Maryland Shall Issue v. Larry Hogan, No. 21-2017.

Frosh, then a state senator, was chief sponsor of the 2013 Firearm Safety Act that banned the assault-style weapons and implemented the licensing requirements. He shepherded the legislation though the Senate as chair of the chamber’s Judicial Proceedings Committee.