RICHMOND, Va. (CN) — For the second time, a Fourth Circuit panel on Tuesday heard arguments in a legal battle between gun owners and Maryland over the constitutionality of the state’s semiautomatic weapons ban.
Gun owners and gun rights organizations, including Firearms Policy Coalition and the Second Amendment Foundation, brought the lawsuit against the state two years ago. The complaint was dismissed last year by a federal judge who said he was bound by prior Fourth Circuit precedent.
On appeal, the plaintiffs argue that after the U.S. Supreme Court’s June ruling in New York State Rifle & Pistol Association v. Bruen, Maryland’s ban on semiautomatic weapons like the AR-15 is no longer constitutional.
“Bruen clarifies how the Court’s Second Amendment test applies specifically to laws like Maryland’s barring the possession of certain types of firearms," the gun rights supporters' brief to the Fourth Circuit states. “With respect to the Second Amendment’s text, the Court reiterated that ‘the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding.’"
The Richmond, Virginia-based federal appeals court already heard arguments against Maryland’s Firearm Safety Act in 2016. The en banc court eventually ruled in favor of the state, finding assault weapons fall outside the Second Amendment’s scope.
Before the Bruen ruling, 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. But in Bruen, the Supreme Court established a new test based on whether the weapons in question are in common use by the public for self-defense.
Representing the gun owners at Tuesday's hearing, attorney Peter Patterson of Cooper and Kirk presented statistics to show that semiautomatic weapons are commonly used. One statistic from the Firearm Industry Trade Association said the number of AR-15s and other similar rifles in circulation in the United States exceeds 24 million.
Maryland’s Assistant Attorney General Robert Scott disputed the statistics used by Patterson, stating that most of the surveys were conducted by the firearms industry. Scott said he would like the case to go back to the original district court it was heard in so the state would have time for discovery to cross-examine Patterson’s sources.
According to the Bruen opinion, the only way that a law limiting conduct falling within the Second Amendment’s scope can be upheld is if the government can demonstrate a "historical tradition" of regulations restricting the right to bear arms for similar reasons.
Scott argued the U.S. has a history of banning weapons such as bowie knives and metal knuckles that are uniquely dangerous and suited to criminal uses.
“Thus, under Bruen’s framework, the historical evidence supports Maryland’s law," according to the state's brief to the Fourth Circuit. “Because the assault-rifle ban is consistent with this Nation’s traditions of firearms regulation, the law accords with the Second Amendment.”
U.S. Circuit Judge Julius N. Richardson, a Donald Trump appointee, asked Patterson what metric he would use to determine whether a gun is in common use. Patterson again pointed to surveys indicating that millions of semiautomatic weapons are in circulation.
U.S. Circuit Judge Stephanie D. Thacker, a Barack Obama appointee, questioned the lack of limits to the common-use standard, asking Patterson what would happen if gun manufacturers flooded the market with grenade launchers and millions of Americans purchased them. Patterson responded by saying that situation would not happen because the American people use common sense and would not buy weapons they do not need for self-defense.
The Bruen case challenged the legality of New York's Sullivan Act of 1911, which required licenses for New Yorkers to possess firearms small enough to be concealed. Private possession of such firearms without a license was a misdemeanor and carrying them in public was a felony. The Supreme Court struck down the state law, finding it unconstitutionally restricted who gets to carry a concealed weapon in public.
Scott asserted that a ban on pistols is much different than a ban on semiautomatic weapons and told the panel that no one would dispute pistols are commonly used for self-defense.
After Thacker suggested semiautomatic weapons are used for mass shootings and killing police officers, Patterson pushed back and said pistols are the primary weapon of criminals, not semiautomatic weapons.
Maryland enacted the Firearm Safety Act in 2013, shortly after the Sandy Hook Elementary School mass shooting in nearby Connecticut in 2012. The law outlines 81 specific banned gun models, including AK-47s and Uzi semiautomatic pistols.
U.S. Circuit Judge Paul V. Niemeyer, a Ronald Reagan appointee, questioned whether all 81 banned weapons are in common use. Patterson responded that all of the banned guns are more or less the same thing and would all be considered to be in common use.
The judges did not indicate when they would issue a ruling.
Neither attorney responded to requests for comment on the hearing.
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