4th Circuit weighs constitutionality of Maryland’s ban on assault-style weapons

The 4th U.S. Circuit Court of Appeals probed the boundaries of the Second Amendment at oral arguments Wednesday over Maryland’s ban on assault-style weapons, the first of two major gun cases the judges will consider en banc this week.

In arguments peppered with questions from the panel, lawyers for the state and for gun rights advocates debated whether the ban has a historical analogue and whether the weapons covered under the law, including AR-15s, are in common use.

Both questions became central in gun control disputes following the U.S. Supreme Court’s 2022 decision in New York State Rifle & Pistol Association Inc. v. Bruen, which dramatically changed the legal landscape for Second Amendment cases by requiring a tradition of similar gun regulation in U.S. history.

The law at the heart of the Maryland case is the 2013 Firearm Safety Act. The statute banned 45 weapons, including the AR-15, following the mass shooting at Sandy Hook Elementary School in Connecticut, which led to the deaths of 20 children and six adults.

Peter A. Patterson, the lawyer for a coalition of gun rights groups, argued Wednesday that the law is unconstitutional because it bans weapons that are in common use.

The AR-15 is among the most popular rifles sold in the United States, with more than 24 million in circulation today.

“It’s the state’s burden to show they’re dangerous and unusual,” Patterson said, referencing another part of the test established in Bruen.

The judges were skeptical. Judge J. Harvie Wilkinson III repeatedly asked why states should not be able to regulate firearms that pose new and particularly lethal threats.

“The historical practice of firearms regulation has been whenever new technologies have arrived on the scene, the states have not been defenseless in the face of technological advances,” Wilkinson said. “If you hold the states powerless as technology advances, … we are putting our society at gradually increased increments of risk.”

The judges also questioned whether the AR-15’s similarity to weapons used by the military, such as the M16 rifle, or its use in high-profile mass shootings, make it a dangerous weapon that can be regulated.

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The questions echoed arguments made by a group of gun control advocacy groups in an amicus brief: “The weapons regulated by the (Maryland law) are weapons of war, designed to kill large numbers of people quickly or to grievously wound them; these weapons are significantly more lethal than any firearms in the 1700s or 1800s,” the groups wrote.

The 4th Circuit may remand the case back to district court for further analysis instead of outright ruling on the ban’s constitutionality.

The judges’ decision to rehear the case en banc was unusual because the three-judge panel that originally heard arguments had not issued a ruling yet.  The panel appeared poised to strike down the ban under the Bruen framework.