4th Circuit first court to hold assault weapons do not fall within 2nd Amendment’s protection
By Steve Lash
BridgeTower Media Newswires
BALTIMORE — Maryland Attorney General Brian E. Frosh on Tuesday urged the U.S. Supreme Court to let stand a lower-court decision upholding the constitutionality of the state’s ban on military-style assault weapons and high-capacity magazines, those carrying more than 10 rounds of ammunition.
In papers filed with the justices, Frosh said the 4th U.S. Circuit Court of Appeals correctly held in February that the 2013 Maryland Firearm Safety Act does not violate the Second Amendment’s right to keep and bear arms. Frosh also found no fault in the 4th Circuit’s more controversial conclusion that the ban on the high-powered guns and ammunition quantity does not even implicate the constitutional right due to a lethal ferocity “most useful in military service.”
Frosh, as the 4th Circuit had done, 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.
“Nothing in Heller suggests that legislatures are rendered powerless to ban these unusually dangerous threats,” Frosh wrote. “As the 4th Circuit found, a ban on military-style assault weapons and large-capacity magazines survives constitutional scrutiny because there is substantial evidence of its fit with the state’s compelling interest in protecting the public.”
Frosh was joined in the brief by Maryland Solicitor General Steven M. Sullivan and Assistant Attorneys General Jennifer L. Katz, Patrick B. Hughes and Julia Doyle Bernhardt, who is counsel of record before the high court.
“Although the 4th Circuit is the first court to hold that the banned assault weapons and large-capacity magazines do not fall within the Second Amendment’s protection, no other court of appeals has resolved the issue in a way that conflicts in any meaningful sense with the 4th Circuit’s holding,” Frosh wrote. “If a real conflict ever develops on the constitutionality of bans on assault weapons, large-capacity magazines, or some other types of arms, this court will have an opportunity to resolve it. At this time, any such conflict is merely conjectural.”
Frosh’s brief followed that of gun-rights advocates urging the Supreme Court to hear their appeal and strike down the law as unconstitutional.
The advocates argued in their pending request for review that 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.”
The advocates said “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.”
In Heller, the Supreme 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,” wrote the advocates’ lead attorney, John Parker Sweeney, of Bradley Arant Boult Cummings LLP in Washington.
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. 17-127.
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4th Circuit decision
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.
