Fourth Circuit hears third challenge to Maryland assault weapons ban

RICHMOND, Va. (C.N.) — Gun rights advocates for the third time asked an en banc Fourth Circuit panel Wednesday to consider Maryland's ban on semiautomatic rifles. 

The hearing comes after a three-judge panel heard the case in 2022 but did not issue an opinion. The Fourth Circuit has had numerous run-ins with challenges to Maryland's arms prohibition. 

A three-judge panel initially found it unconstitutional in 2016 before changing course following an en banc hearing, in which 10 of the 14 judges found the Second Amendment does not apply to the banned firearms and high-capacity magazines.

Appellants include Marylanders who claim they want to acquire a banned firearm for self-defense and other lawful purposes but have been barred from doing so, and a firearm dealer forced to forgo firearm sales to lawful purchasers because of the ban. 

In 2022, the U.S. Supreme Court ruled in New York State Rifle and Pistol Association v. Bruen, with the conservative majority finding New York violated the Second Amendment by restricting who could carry a concealed weapon publicly. The ruling changed the standard for how courts determine if a gun control law violates the Second Amendment, setting off challenges to gun restrictions across the country. The new test asks whether the public commonly uses the weapon in question for self-defense. 

"AR-style rifles, the prototypical firearm banned by the state, are the best-selling rifles in the nation and among the most popular firearms in the country, period," attorneys representing the gun rights advocates wrote in their brief.

Before Bruen, the Fourth Circuit determined in Kolbe v. Hogan that if a weapon is most useful for the military, then the Second Amendment does not protect it. The appeals court explicitly labeled AR-15s as a weapon designed for the battlefield in Kolbe, which Maryland says is binding on the court. 

"Plaintiffs seek to relitigate the arguments that were addressed and rejected in Kolbe," Maryland stated in its brief. "This court's precedent and plaintiffs' own concession demand affirmance of the district court's judgment dismissing the complaint for failure to state a claim."

The gun rights advocates seek to overturn Kolbe as unconstitutional in the face of Bruen.

The judges debated what the threshold is for considering something in common use. Patterson argued that it is common use if over a million Americans use it, like the popular AR-15. U.S. Circuit Judge Pamela Harris, a Barack Obama appointee, pushed back. 

"What percentage of Americans is that?" Harris asked. "Under 1% is common use?" 

Patterson likened the number of semiautomatic weapons to electric vehicles. Patterson cited statistics showing that the U.S. has 3 million electric cars, yet they are still considered in common use. 

Chief U.S. Circuit Judge Albert Diaz, another Obama appointee, asked Patterson whether any weapon could be banned if it was in common use. 

"So a state cannot ban a machine gun, assuming there had been no federal ban," Diaz asked. "What about a bazooka being used for recreational purposes? A tactile nuclear weapon?" 

Patterson responded that the situation would not happen because the American people use common sense and would not buy weapons they do not need for self-defense.  

U.S. Circuit Judges J. Harvie Wilkinson and Paul Niemeyer, both Ronald Reagan appointees, argued over the appropriate next steps. Wilkinson found the appellants' request to label the entire act unconstitutional rather than challenging individual gun inclusion in the ban as an overreach. 

"It's quite dramatic, really," Wilkinson said. "We don't like facial attacks that seek to void statutes in their entirety, and yet it seems to me that's what you're lodging here."  

Niemeyer, however, said the court's task is more straightforward than debating the judges' opinions on gun control. Rather than deciding the historical analysis and whether a gun is in common use, Niemeyer suggested sending the case back to the lower court so it can task Maryland with presenting the data.  

"We ought to follow Bruen whether we like it or not," Niemeyer said. "There is a lot of political pressure on a third-branch court, and as a consequence, we sit here and debate all kinds of arms as if we're some kind of subcommittee." 

Patterson argued that all the guns Maryland banned are basically the same, so a sweeping ruling would be appropriate.  

Wilkinson also pointed to former U.S. Supreme Court Justice Antonin Scalia's 2008 opinion in the landmark case District of Columbia v. Heller. Heller held that the Second Amendment protects an individual's right to possess a firearm unconnected with service in a militia and to use that arm for traditionally lawful purposes, such as self-defense within the home. Relevant is that Scalia also wrote that weapons may be banned if they are most useful in military service — "M16 rifles and the like."

"Have you ever fired an M16," Wilkinson, who served in the army reserves during the Vietnam War, asked. "The kick was so powerful that when a bullet struck a human being, it splintered them in all sorts of different pieces. There was very little left of the human being."  

Patterson said the idea of banning guns because they're useful in war contradicts their purpose. 

"The Second Amendment, as Heller said, was put into the Constitution to preserve the militia, which was valued for things like putting down insurrections and repelling invasions," Patterson said. "The notion that a firearm cannot be protected because of its military utility would make no sense." 

Wilkinson also said the weapons in the case before them strayed from Bruen and Heller.

"These are dramatically different weapons that are before us in this case than the handgun statutes and handgun regulations that were at issue in Bruen and Heller," Wilkinson said. "This is a whole jump up. It's a different level of magnitude." 

The Firearms Safety Act, which Maryland passed following the 2012 Sandy Hook massacre, brought sweeping gun control laws to the Terrapin State, including requiring handgun qualification licenses, bans on armor-piercing munitions and 81 specific gun models, including AK-47s, Uzi semiautomatic pistols and AR-15 rifles.

Patterson declined to comment following the hearing. 

"We will continue to vigorously defend common-sense gun safety laws," a Maryland Attorney General's office spokesperson said in an email. 

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