Md. appeals court upholds 'assault weapon' ban: a new challenge to scope of Second Amendment?

A Maryland law banning so-called assault rifles survived its day before a federal appeals court Tuesday, marking a victory for gun control advocates that could bring the question of whether military-style weapons receive Second Amendment protection before the nation’s highest court.

The US Appeals Court for the 4th Circuit held in a 10-4 ruling that the right to bear arms under the Second Amendment doesn’t encompass the ownership of the high-capacity "weapons of war." Drawing on examples of mass shootings in Newtown, Conn.; Orlando; and San Bernardino, Calif., the court ruled that the military-style weapons used in some of the nation’s most violent attacks don't fall under the right to self-defense.

At its core, the argument examines whether or not weapons such as AR-15s and AK-47s are the kind of firearms necessary for legal purposes, such as self-defense, or if they constitute “dangerous and unusual” weapons that have been historically prohibited in some states.

That’s the question courts have grappled with since the 2008 landmark Supreme Court ruling District of Columbia v. Heller. While the court held that the Second Amendment allowed gun owners to keep firearms for self-defense, it did note – in somewhat ambiguous terms – that the right had its limits: then-Justice Antonin Scalia, who wrote the opinion for the majority, found support for "the historical tradition of prohibiting the carrying of 'dangerous and unusual weapons.'"

For the 4th Circuit, that piece of Heller was license to uphold Maryland's ban.

“Heller left a lot of questions open, but courts of appeals have been pretty uniform in their decisions,” Joseph Blocher, a law professor at Duke University, tells The Christian Science Monitor, noting that many courts have ruled that owning such weapons falls within the Second Amendment, but upheld state laws restricting their use. “This case goes a little farther than some in that it holds assault weapons fall outside the Second Amendment. Most other courts have assumed that they fall inside and are still subject to ban.”

Seven states and the District of Columbia have banned semiautomatic rifles, and several have faced legal challenges. Four appeals courts have rejected those challenges. But in saying that such weapons are not protected by the Second Amendment, the 4th Circuit has taken a different approach.

“We conclude – contrary to the now vacated decision of our prior panel – that the banned assault weapons and large-capacity magazines are not protected by the Second Amendment,” the appeals court wrote in Tuesday’s decision. “That is, we 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.”

Heller struck down a Washington, D.C., code that made it illegal to carry an unregistered gun, prohibited registration of handguns, and required that owners of registered weapons keep them unloaded or disassembled until in use for legal, recreational activities.

While the Supreme Court found that ban too expansive and burdensome on those keeping weapons commonly and historically used for self-defense, its take on the legality and place of firearms that resemble military-style weapons has raised questions in the near-decade since.

The Maryland law, known as the Firearm Safety Act and passed in 2013, makes it illegal to “transport an assault weapon into the State” or “possess, sell, offer to sell, transfer, purchase, or receive an assault weapon,” banning 45 types of firearms and placing a 10-round limit on magazines. It was challenged by guns right advocates and upheld by a district court, but struck down by a panel of appeals court judges who believed the law violated the Second Amendment rights of gun owners.

But the full court voted to vacate the prior decision and rehear the case, bringing it back for the court to hear en banc, where the 14-judge bench heard the case.

Tuesday’s decision drew praise from gun control advocates, but ire from those in favor of weapons rights.  

"It is absurd to hold that the most popular rifle in America is not a protected 'arm' under the Second Amendment," NRA spokeswoman Jennifer Baker told the Associated Press. The NRA estimates that between 5 million and 10 million AR-15s are currently owned in the United States.

In the Heller ruling, the Supreme Court suggested there could be support for limiting the types of firearms that should receive legal protection, citing a tradition of prohibiting "dangerous and unusual weapons." But with the AR-15 seeing wide ownership across the country, the Maryland ruling could set itself up to challenge those guidelines.

And while the Supreme Court has declined to take up several Second Amendment cases, a push from guns-rights activists, in conjunction with several similar appeals courts rulings, could change that.

“Eventually it’s going to boil over,” says Stephen Halbrook, an attorney and senior fellow at the nonpartisan Independent Institute who presented an oral argument in the appeal of the Heller case. “If you look at what the courts of appeals have done, there’s been strong dissenting opinions as well.”

If the Maryland law were to appear before the Supreme Court, justices would be forced to answer some of the questions left in the wake of its Heller ruling, such as what constitutes common ownership, and how long a weapon must be barred to become “historically” banned.

“Like everything about Heller, each of these issues is open to some real interesting and empirically complicated questions that need to be answered,” says Saul Cornell, a professor at Fordham University who specializes in American legal history. 

And as is often the case with gun legislation, passion and empathy have common features in the arguments – which, gun-rights proponents say, could shape people's opinion of how dangerous military-style weapons are. At the appeals court, for example, opening the decision with descriptions and death tolls of several high-profile shootings brought emotion to the decision, which felt out of place in the legal argument, Dr. Halbrook says.

“That was totally an emotional appeal,” he says. “If you want to list all the murders in our country that have occurred with handguns, you would need hundreds of pages. There’s been a lot more carnage from handguns.”

It’s hard to gauge how the Supreme Court will divide on the case. With Neil Gorsuch nominated for the vacant seat left by Justice Scalia’s death, the court stands to gain a ninth member who would give it a conservative slant, but experts say it’s too soon to say if that will result in the appeals court decision being overturned.

While some may argue that military-style weapons have no place among civilians, others counter that the commonly-owned weapons are used less frequently than other weapons for violence. Neither of those stances give real insight as to how the court will view the issue, however.

“These are all rational arguments and logical arguments, and I think we’ve all watched enough Supreme Court opinions to realize that’s not how the Supreme Court always decides things,” Dr. Cornell says.

This report includes material from the Associated Press.