Gun owners urge Fourth Circuit to strike down carry laws in Maryland, Virginia

(CN) — The Fourth Circuit heard arguments on the constitutionality of gun control laws in Maryland and Virginia as judges nationwide continue to grapple with a landmark ruling from the U.S. Supreme Court that broadly expanded the right to bear arms in public.

Virginia gun owners argued Wednesday that a Fairfax County ban on firearms in public parks and near permitted gatherings was overly broad. They leaned on the Supreme Court’s 2022 decision in New York State Rifle & Pistol Association Inc. v. Bruen , which overturned New York’s concealed carry law on the basis that gun control must be rooted in the “historical tradition of firearm regulation.”

In a separate case, Maryland gun owners asked the appellate court to strike down a 2023 state law that prohibits the possession of firearms in 15 types of locations, including museums, health care facilities, state parks and school grounds. The law also prohibits gun possession in privately owned buildings without permission.

As lawyers debated the application of 18th-century laws to modern America, U.S. Circuit Judge Steven Agee joked he wished he could ask Thomas Jefferson or James Madison for clarification.

The Bruen decision unleashed a wave of challenges to gun control laws across the nation as Second Amendment activists seek to roll back regulations they see as overly restrictive. Meanwhile, judges have struggled to uniformly apply the “historical tradition” test to modern laws.

U.S. Chief Circuit Judge Albert Diaz, a Barack Obama appointee who served on Wednesday’s panel, wrote in an opinion issued last August that the Bruen test had created “a labyrinth for lower courts, including our own, with only the one-dimensional history-and-tradition test as a compass.”

Pete Patterson, an attorney for the D.C.-based firm Cooper & Kirk, represented the Maryland gun owners at Wednesday’s hearing.

He pointed out the Bruen opinion provided examples of “sensitive places” where gun restrictions were appropriate, including polling places, government buildings and legislative assemblies. While the high court did not define “sensitive places,” Patterson offered a common principle: They were all locations where the government already offered protections, thereby rendering a citizen’s need for self-defense unnecessary.

“That is consistent with the principles that underlie the Second Amendment, which states that people have a right to protect themselves when the government cannot,” Patterson said.

The Supreme Court also identified schools as sensitive places. Patterson argued the principle of in loco parentis, or the legal responsibility of the government to act on behalf of an absent parent, justified banning firearms in such locations.

Maryland Assistant Attorney General Ryan Dietrich countered that Patterson’s reasoning was flawed. If the only standard for identifying “sensitive places" was government security, firearms could be banned in any location simply by installing guards or metal detectors.

Dietrich pointed to analogue historical laws from the 18th and 19th centuries that restricted firearm possession at specific locations, including museums and racetracks, but he argued it was unnecessary to find perfect analogues to justify every restriction.

“I think what Bruin established was there is a tradition — that obviously started with the founding, or before the founding in American history — and evolved through that,” Dietrich said. “So you have traditions that were in place at the founding, but you have evolving technological changes and societal changes that inform the tradition as it evolves through Reconstruction and beyond.”

U.S. Circuit Judge Roger Gregory, a Bill Clinton appointee, pushed back on Dietrich’s interpretation.

“Bruin was just incredibly broad,” Gregory said. “It established, from Heller , that people have a right to protect themselves and carry weapons. We have to construe what the Supreme Court said and go back 200-some years to figure out what these analogues are – and they were pretty broad then. People carried guns in many places.”

The judges raised similar concerns in the Virginia case. Agee, a George W. Bush appointee, pointed out there were parks at the time of the country’s founding and there was no evidence of firearm restrictions in those spaces.

Janet Carter, an attorney for the gun safety organization Everytown Law, told the judges colonial green spaces would not qualify as parks today. The areas were used more for militia training and animal grazing than idyllic recreation, she said.

Carter argued laws that existed during the ratification of the 14th Amendment, which made the Constitution applicable to the states, should also be considered. Using the extended time period, Carter said they identified more than 150 laws prohibiting gun possession in parks across the country.

Stephen Halbrook, a private attorney representing the Virginia gun owners, said at Wednesday’s hearing the Fairfax County park system extended across 24,000 acres of land — twice the size of Manhattan. Prohibiting gun possession in such a large, and mostly forested, area was overly burdensome.

“If you ban guns in large wooded areas, then there really is no end to this,” he said.

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