Local and national Second Amendment rights advocates say an appeal to the U.S. Supreme Court is likely, following an appeals court decision Tuesday that upholds a 2013 Maryland law banning assault weapons.
The 10-5 split decision by the full 4th U.S. Circuit Court of Appeals in Richmond leaves in place the 2013 law, despite recent landmark rulings by the nation’s highest court that some felt would nullify the decade old Maryland law.
Instead, the majority, in an opinion written by Appeals Judge J. Harvie Wilkinson III said the “assault weapons at issue fall outside the ambit of protection offered by the Second Amendment because, in essence, they are military-style weapons designed for sustained combat operations that are ill-suited and disproportionate to the need for self-defense.”
“Moreover, the Maryland law fits comfortably within our nation’s tradition of firearms regulation. It is but another example of a state regulating excessively dangerous weapons once their incompatibility with a lawful and safe society becomes apparent, while nonetheless preserving avenues for armed self-defense,” Wilkinson wrote.
The decision in Bianchi v. Brown is just the latest attempt to overturn the 2013 state law. The U.S. Supreme Court remanded the case to 4th Circuit in 2022, after its landmark decision in New York State Rifle & Pistol Association v. Bruen.
The ruling in Bruen imposed a “historical analogue” test to firearms laws and regulations using 1791 as a benchmark. Bruen was hailed hailed by Second Amendment advocates and decried by proponents of stricter gun control laws, with both sides predicting the demise of gun control laws across the country.
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“We conclude that Bruen did not mandate an abandonment of our faith in self-governance, nor did it leave the balance struck throughout our history of firearms regulation behind,” Wilkinson wrote for the majority.
Wilkinson went on to write that weapons such as the AR-15, AK-47, and the Barrett .50 caliber sniper rifle are not protected by the Second Amendment because they are “excessively dangerous” and do not comport with a “constitutional right to keep and bear arms for self-defense.”
The judge added that the Constitution does not guarantee the right to “military-grade or gangster-style weapons.” To bolster his argument, Wilkins rattled off a litany of high-profile 21st century “horrific mass shootings” including “Las Vegas, Orlando, Blacksburg, Sandy Hook, Sutherland Springs, El Paso, Uvalde, Lewiston, Parkland, San Bernardino, Binghamton, Fort Hood, Thousand Oaks, Virginia Beach, Washington, D.C., Aurora, Monterey Park, Pittsburgh, Geneva County, Boulder, Buffalo, Covina, Dayton, Red Lake, Roseburg, San Jose, Santa Fe, Allen, Charleston, Indianapolis, Manchester, Omaha, and Plano.”
All involved the types of weapons the Maryland law bans, Wilkinson wrote.
“Certainly, it would have been shocking to the Framers to witness the mass shootings of our day,” Wilkinson wrote.
The majority opinion said that the modern weapons, based on military-grade firearms, were offensive weapons with little to no role in self-protection.
“These are not our forebears’ arms, and these are not our forebears’ calamities. We thus take the instruction of Bruen to engage in a ‘more nuanced approach’ to address these ‘unprecedented societal concerns,’” Wilkinson wrote.
But Judge Julius N. Richardson, writing for the five dissenting judges, said the majority overstepped its role. The Second Amendment does not let judges “balance away precious liberties for the sake of broader societal interests,” he wrote.
“The Second Amendment is not a second-class right subject to the whimsical discretion of federal judges. Its mandate is absolute and, applied here, unequivocal. Appellants seek to own weapons that are indisputably ‘Arms’ within the plain text of the Second Amendment,” Richardson wrote.
“While history and tradition support the banning of weapons that are both dangerous and unusual, Maryland’s ban cannot pass constitutional muster as it prohibits the possession of arms commonly possessed by law-abiding citizens for lawful purposes,” he said in his dissent. “In holding otherwise, the majority grants states historically unprecedented leeway to trammel the constitutional liberties of their citizens.”
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Citing the history of the founding of the United States, Richardson argued that possessing such weapons are for self-protection against a tyrannical government.
Richardson wrote that “self-defense can be individual or collective. And the Second Amendment expressly ensures that the people can preserve ‘the security of a free State’—that is, a ‘free country’ or ‘free polity’ — should their government ever threaten their inviolable liberties. Individual and communal self-defense against both foreign and domestic threats were thus the purposes enshrined in the Second Amendment ”
He added: “The Second Amendment was adopted to ensure that the people are equipped to protect themselves against both public and private violence. It is a weighty responsibility, undoubtedly, and one that other nations deem unworthy of entrusting to their citizens. Yet our system does so all the same.
“The Founders learned from experience that the people are most vulnerable to abuse when they lack the means to defend themselves, so they guaranteed that the people would always have adequate means to safeguard their liberties. Today, the majority disregards the Founders’ wisdom and replaces it with its own,” Richardson wrote.
The law upheld by the federal appeals court was enacted in 2013 following the mass shooting at Sandy Hook Elementary School in which 26 people – 20 of them between the ages of 6 and 7 – were shot and killed.
Maryland Attorney General Anthony Brown said Tuesday’s ruling “will save lives.”
“Access to weapons of war that have no place in our communities causes senseless and preventable deaths. I commend the Court for its decision,” Brown said in a statement. “We will continue to vigorously defend common-sense gun safety laws that protect Maryland residents.”
The decision was also applauded by gun-control advocates.
“Laws prohibiting assault weapons have consistently and correctly been upheld as constitutional under the Second Amendment by federal trial and appellate courts alike – with countless communities undoubtedly safer as a result,” said Bill Taylor, deputy director of Second Amendment Litigation at Everytown Law, in a statement.
“We’re pleased that the Fourth Circuit saw reason and ruled to protect Marylanders from these instruments of mass violence. In the wake of the Supreme Court’s decisions in Bruen and Rahimi, we have seen an overwhelming trend of lower court rulings upholding these crucial laws. We will fight to ensure this trend continues,” his statement said.
Everytown Law submitted an amicus brief in favor of the 2013 Maryland law.
Second Amendment advocates predict a Supreme Court challenge.
“That was an error. I think it’s that clear,” Mark Pennak, president of Maryland Shall Issue, said about the majority’s ruling.
Pennak, an attorney who is not part of the case, said he has not read the entire ruling. But the dissenting opinion, he said, “is correct,” especially when it comes the U.S. Supreme Court’s 2022 decision in Bruen.
“This idea that the AR-15 is uniquely dangerous of the wounds it inflicts. All bullets inflict wounds,” Pennak said. “All firearms are dangerous in the wrong hands. In the right hands, it can be used for self-defense, including self-defense in the home.”
Pennak said he would not be surprised if the plaintiffs sought a review of the case before the Supreme Court.
That will happen, according to a statement from the Second Amendment Foundation (SAF), a gun-rights organization based in Bellevue, Washington. The foundation is part of the suit that includes two Baltimore County residents, Dominic Bianchi and David Snope, and Michah Schaefer of Anne Arundel County.
“The court relied heavily on the distinction between ‘military style’ arms and those appropriate for self-defense use,” said SAF founder and Executive Vice President Alan M. Gottlieb. “This distinction runs completely contrary to the mandates of Heller and Bruen, and now sets the stage for another petition for SCOTUS review of the case.”
– Maryland Matters reporter William J. Ford contributed to this report.
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Publish date : 2024-08-06 15:17:00
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