4th Circuit upheld ban, saying Second Amendment right is not implicated
By Steve Lash
BridgeTower Media Newswires
BALTIMORE — Gun-rights advocates on Friday urged the U.S. Supreme Court to review and strike down as unconstitutional Maryland’s ban on military assault-style weapons and high capacity magazines, those carrying more than 10 rounds of ammunition.
In papers filed with the high court, the advocates’ attorneys argued that the ban violates the Constitution’s Second Amendment right “to keep and bear arms.”
The 4th U.S. Circuit Court of Appeals upheld the 2013 Maryland Firearm Safety Act in February, saying the Second Amendment right is not implicated by the state’s prohibition on high-powered weapons “most useful in military service.” The 4th Circuit cited the Supreme Court’s 2008 decision in District of Columbia v. Heller, finding a right to have handguns in the home for self-protection.
In their Supreme Court appeal of the 4th Circuit’s decision, the advocates argued that the Second Amendment right applies to more than handguns.
“The 4th Circuit’s decision misinterprets and conflicts with Heller and its progeny, as well as with the decisions of other Courts of Appeals, on a central question addressed in Heller: What arms are protected by the core right of the Second Amendment — the right of law-abiding citizens to keep arms in common use for self-defense in the home,” lead attorney John Parker Sweeney wrote on the advocates’ behalf.
“Heller struck down a prohibition on the firearms most commonly used for self-defense — handguns — even though handguns are arguably more ‘dangerous’ than other firearms, and even though firearms other than handguns remained available for use in self-defense,” added Sweeney, of Bradley Arant Boult Cummings LLP in Washington, D.C. “This court recognized and protected the principle at the heart of the interests enshrined by the Second Amendment: The individual — and not the government — retains the right to choose from among common arms those that they believe will best protect their person, family, and home.”
Maryland Attorney General Brian E. Frosh has yet to respond formally to the advocates’ request for Supreme Court review. However, Frosh predicted in March that the Supreme Court will either decline to hear the appeal or take the case and affirm the 4th Circuit’s decision.
“The Second Amendment does not protect weapons of war,” Frosh said then. “One way or another the (4th Circuit’s) decision will be upheld.”
The Supreme Court has not set a date for its decision on whether to hear the advocates’ appeal. The case is docketed at the high court as Stephen V. Kolbe et al. v. Lawrence J. Hogan Jr. et al., No. 16A1074.
Frosh, then a state senator, was the chief sponsor of the Maryland Firearm Safety Act and shepherded the bill through the Senate as chair of the chamber’s Judicial Proceedings Committee.
In its 10-4 decision, the 4th Circuit said Heller gives states leeway to regulate the 45 assault weapons restricted under the Maryland law.
“(W)e are convinced that the banned assault weapons and large capacity magazines are among those arms that are ‘like’ ‘M-16 rifles’ – ‘weapons that are most useful in military service’ – which the Heller court singled out as being beyond the Second Amendment’s reach,” Judge Robert B. King wrote for the 4th Circuit majority. “Put simply, we have no power to extend Second Amendment protection to the weapons of war that the Heller decision explicitly excluded from such coverage.
“Nevertheless,” King continued, “we also find it prudent to rule that – even if the banned assault weapons and large capacity magazines are somehow entitled to Second Amendment protection – the district court properly subjected the FSA to intermediate scrutiny and correctly upheld it as constitutional under that standard of review.”
In dissent, Judge William B. Traxler Jr. said individuals have a Second Amendment right to possess the weapons and high capacity magazines, as they are “commonly possessed by American citizens for lawful purposes.”
“In my view the burden imposed by the Maryland law is considerable and requires the application of strict scrutiny, as is customary when core values guaranteed by the Constitution are substantially affected,” Traxler wrote.
“I recognize that after such a judicial review, the result could be that the Maryland law is unconstitutional,” Traxler added. “I make no predictions on that issue. I simply say that we are obligated by Supreme Court precedent and our own to treat incursions into our Second Amendment rights the same as we would restrictions on any other right guaranteed by our Constitution.”
The 4th Circuit’s ruling affirmed an August 2014 decision by U.S. District Judge Catherine Blake in Baltimore. Blake ruled she was inclined to find the prohibited weapons are “dangerous and unusual,” which would have removed them from Second Amendment protection. But she said it was not necessary to base her decision on that ground and instead found the ban is “reasonably adapted to (the) substantial government interest” in ensuring public safety.
