Maryland’s ban on semiautomatic assault-style weapons violates the constitutional right to keep and bear arms because the guns, though dangerous, are commonly used by law-abiding citizens, gun rights advocates told a federal appeals court Monday.
The advocates cited a recent U.S. Supreme Court decision in stating that gun restrictions are constitutionally valid only if in keeping with the nation’s history of regulating “dangerous and unusual” weapons when the Second Amendment was ratified in 1791 or when the 14th Amendment extended the right to the states in 1868.
The 45 weapons prohibited under Maryland’s law – including the AR-15 – are not unusual, as many have existed since the 1950s and semiautomatic rifles have been commercially sold in the United States since 1903, the advocates stated in their written filing with the 4th U.S. Circuit Court of Appeals.
The advocates’ argument followed Maryland Attorney General Brian E. Frosh’s defense of the ban as part of the nation’s tradition of restricting “extraordinarily dangerous” offensive weapons dating to the bowie knife in the early 1800s. Several states restricted the knife in those years due to the “uniquely harmful damage” the weapon could inflict on the human body, Frosh told the 4th Circuit.
Like the bowie knife, assault-style rifles are “novel weapons” that require “novel regulation” due to their “heightened dangers,” which include their use in mass shootings, Frosh wrote in the filing joined by Assistant Attorneys General Robert A. Scott and Ryan R. Dietrich.
In response, the advocates conceded assault-style weapons are dangerous but said danger alone does not justify a ban under the Second Amendment, as the Supreme Court held in New York State Rifle & Pistol Association Inc. v. Bruen last June.
The attorney general has “not identified a single law that would permit a state to outlaw possession of a ‘dangerous’ weapon that was among the most popular contemporary choices of citizens lawfully seeking to exercise their Second Amendment rights,” the advocates’ attorney, David H. Thompson, wrote to the 4th Circuit. “To the extent the state has identified any valid constitutional tradition of regulation at all, it has identified half of it. There is no tradition of banning dangerous arms – just a tradition of banning ‘dangerous and unusual arms.”
Thompson added that “mass shootings do not justify the ban” because “gun violence – even mass gun violence – is not a new problem” and the banned weapons have less firepower than many legal hunting rifles and are “almost never used in crime generally.”
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 Supreme 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 in Bruen 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 Bruen.
“The state attempts to cast its ban as part of a history of regulations that responded to new developments – and consequent problems — with firearms, as a means of turning the court’s focus to the problems Maryland’s legislature was concerned with when it passed the ban in the hope that the court will defer to the state’s ‘difficult empirical judgment,’ but ‘it is not deference that the Constitution demands here,’” Thompson wrote, quoting from Bruen.
“Instead, it is the ‘balance – struck by the traditions of the American people — that demands (the court’s) unqualified deference,’’ added Thompson, of Cooper & Kirk PLLC in Washington. “The American people have selected the banned rifles as their favored tools for self-defense and other lawful purposes, and that controls this case.”
Frosh, in his filing, provided a list of recent mass shootings involving assault-style weapons.
The list included 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; the Feb. 14, 2018, killing of 17 students and staff at Marjory Stoneman Douglas High School in Parkland, Florida; and the May 24, 2022, 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.
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.