Maryland assault weapons ban survives Fourth Circuit challenge

RICHMOND, Va. (C.N.) — A Fourth Circuit en banc panel declared Maryland’s assault weapons ban constitutionally sound Tuesday, teeing up a potential Supreme Court challenge.

“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,” U.S. Circuit Judge Harvie Wilkinson wrote in the 65-page majority opinion. “Time after time, the sheer power of AR-15 style rifles has contributed to hesitation by police in confronting mass shooters, exacerbating the bloodshed and trauma that result.”  

Wilkinson, a Ronald Reagan appointee, wrote that the guns at issue fall outside Second Amendment protections; they are military-style weapons designed for sustained combat operations that are ill-suited and disproportionate to the need for self-defense. 

The president of the Firearms Policy Coalition, one of the plaintiffs, signaled that an appeal is coming. “FPC will take the Fourth Circuit’s terrible decision to the Supreme Court without delay. Our objective is simple: End all bans on so-called ‘assault weapons’ nationwide. And we look forward to doing just that,” Brandon Combs said in a statement.

The ruling was one of two en banc wins for gun control advocates the Fourth Circuit announced Tuesday. In the other, the majority ruled that a firearm with a removed, obliterated or altered serial number is not a weapon in everyday use for lawful purposes.

“We cannot fathom any common-sense reason for a law-abiding citizen to want to use a firearm with an obliterated serial number for self-defense,” U.S. Circuit Judge James Andrew Wynn, a Barack Obama appointee, wrote in the majority opinion for U.S. v. Price. 

The Supreme Court remanded the cases to the Fourth Circuit, which has had numerous run-ins with these regulations, following the high court's ruling in New York State Rifle and Pistol Association v. Bruen, which changed the standard for how courts determine if a gun control law violates the Second Amendment.

Before the 2022 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, and explicitly labeled AR-15s as a weapon designed for the battlefield. However, in Bruen, the Supreme Court established a new test based on whether the public commonly uses the weapons in question for self defense.

For gun regulations to remain feasible post-Bruen, the government must also justify its regulation by demonstrating that it is consistent with the nation’s historical tradition of firearm regulation.

“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 Tuesday in Bianchi v. Brown. 

Chief U.S. Circuit Judge Albert Diaz, a Barack Obama appointee, wrote a concurring opinion outlining the difficulties courts are having post-Bruen. He said lower courts tasked with sifting through the sands of time struggle to find consensus. 

“Bruen has proven to be a labyrinth for lower courts, including our own,” Diaz wrote. “But if courts are to apply and replicate precedent consistently, then either the Bruen framework is failing, or we are.”

Five of the 15 judges — the court’s three Donald Trump appointees and two other Republican-appointed judges — dissented in an opinion penned by the Trump-appointed U.S. Circuit Judge Julius Richardson. They said the majority misconstrued the nature of the banned weapons to demean their lawful functions and exaggerate their unlawful uses. 

“The Second Amendment is not a second-class right subject to the whimsical discretion of federal judges,” Richardson wrote. “Its mandate is absolute and, applied here, unequivocal.”

Like Wilkinson, Richardson wrote at length about the country’s long intertwined history with firearms. But he accused the majority of cherry-picking history. 

“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,” Richardson wrote. “Today, the majority disregards the Founders’ wisdom and replaces it with its own.”

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.

The appellants are 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 who's had to forgo gun sales because of the ban. 

Attorneys representing the state and the appellants failed to respond to requests for comment. The appellants expected petition for certiorari will be the first in a case regarding assault weapons from a final judgment since the Supreme Court ruled in Bruen.

“When our Founders bravely coalesced around that revolutionary piece of parchment, quill pens in hand, they certainly sought to protect the citizenry’s inherent liberties from the often oppressive hand of government,” Wilkinson wrote. “At the same time, though, our Founders organized their fellow countrymen into a civilized society with an elected government, which necessarily entailed the ceding of unadulterated freedom for the nation’s common good.”

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