A federal appeals court panel appears poised to strike down Maryland’s ban on semiautomatic assault-style weapons as unconstitutional in light of a recent Supreme Court decision and based on the argument that the firearms are commonly used by law-abiding citizens for self-defense.
Two of the three judges on the 4th U.S. Circuit Court of Appeals panel agreed Tuesday with an attorney for gun rights advocates when he argued that the justices’ broad interpretation of the Second Amendment right to keep and bear arms includes the 45 weapons – including the AR-15 — banned under the 2013 Firearm Safety Act.
Judges Paul V. Niemeyer and Julius N. Richardson focused on language in the high court’s New York State Rifle & Pistol Association Inc. v. Bruen decision last June that based on the Second Amendment’s history states cannot ban guns that are in common use by law-abiding citizens for a lawful purpose, such as self-defense.
But the panel’s third judge, Stephanie D. Thacker, disagreed. She told attorney Peter A. Patterson that the banned weapons have been used not for lawful purposes but in mass shootings.
“Are there any limits to your position” that weapons in common use for self-defense are constitutionally protected? Thacker said.
She wondered aloud whether grenade launchers would be constitutionally protected if an arms manufacturer “flooded the market” and they became a common weapon for self-defense.
Patterson responded that the Second Amendment does not stretch that broadly.
“At some point, there would be common sense,” Neimeyer said, prompting Thacker to interject, “That’s what we’re looking for.”
Gun rights 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 history of firearms restrictions as they existed when the Second Amendment was ratified in 1791 or when the 14th Amendment extended the right 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 Bruen.
On Tuesday, Assistant Maryland Attorney General Robert A. Scott defended the assault-style weapons ban as a constitutional prohibition on civilian possession of “weapons more suited for military use.”
He told the panel that the Supreme Court in Bruen upheld only the possession of handguns by law-abiding citizens outside their homes.
But Niemeyer disagreed, saying the high court likely would not have sent the case back to the 4th Circuit if the justices were prepared to make a Second Amendment distinction between assault-style weapons and handguns.
The “essence of the test” for constitutionality in Bruen is whether the guns are in common use, not whether they have military applications, Niemeyer said.
The judge cited data showing the banned guns are in common use for self-defense.
Thacker, however, questioned the accuracy of surveys regarding how people plan to use semiautomatic assault-style weapons.
“They don’t say I’m going to use it to shoot up a Walmart,” Thacker said. “They say I’m going to use it for self-defense.”
Scott, the assistant attorney general, suggested that the 4th Circuit either uphold the ban’s constitutionality or send the case back to U.S. District Court for a hearing on whether the prohibited weapons are in fact in common use and if so if they are used for self defense.
The 4th Circuit did not state when it will issue a decision in the case, Dominic Bianchi et al. v. Brian E. Frosh et al., No. 21-1255.
The losing party in the 4th Circuit will likely seek review by the Supreme Court.
The gun rights advocates challenging Maryland’s ban 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.
Patterson, the advocates’ attorney, is with Cooper & Kirk PLLC in Washington.