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Feb. 9 — Maryland's law banning possession of many semi-automatic rifles and certain large capacity magazines is in peril after a Feb. 4 decision by the U.S. Court of Appeals for the Fourth Circuit.
The court said it was “compelled” by U.S. Supreme Court and other circuit precedent “to conclude that the burden” imposed by Maryland's Firearm Safety Act “is substantial and strict scrutiny is the applicable standard of review for Plaintiffs' Second Amendment claims.”
Chief Judge William B. Traxler Jr. wrote for the majority in deciding that strict scrutiny applied to the FSA's ban on “assault weapons” and that its ban on “copies” of such weapons was not unconstitutionally vague.
The court remanded the case to the district court to consider the law under strict, rather than intermediate, scrutiny.
The decision was “profoundly wrong” and “won't hold up” on review, Jonathan Baum, Of Counsel at Katten Muchin Rosenman LLP, Chicago, told Bloomberg BNA Feb. 5. Baum represented the Law Center to Prevent Gun Violence and Marylanders to Prevent Gun Violence, and submitted an amicus brief on their behalf.
Baum also noted that although Maryland was the only state in the Fourth Circuit with such a ban, across the country there are between five and seven statewide bans and numerous county and municipal bans that could be indirectly affected by the ruling here.
“We are pleased to see the Fourth Circuit support the fundamental, individual right of self defense,” Mark Selmi, a spokesperson for Michel & Associates, P.C., told Bloomberg BNA Feb. 8. Michel & Associates represented the California Rifle & Pistol Association, which submitted an amicus brief on behalf of the plaintiffs.
The Fourth Circuit split with at least the Seventh Circuit over the appropriate level of scrutiny to apply to such bans.
The Seventh Circuit recently upheld a similar ban imposed by Highland Park, Ill., in Friedman v. City of Highland Park, 784 F.3d 406, 2015 BL 120857 (7th Cir. 2015).
“The Seventh Circuit's approach cannot be reconciled with” District of Columbia v. Heller, 554 U.S. 570 (2008), which struck down D.C.'s handgun ban, the Fourth Circuit said.
The U.S. Supreme Court denied review of Friedman, over a dissent by Justice Clarence Thomas, in December .
The Fourth Circuit majority also noted that the Ninth Circuit, in Fyock v. Sunnyvale, 779 F.3d 991 (9th Cir. 2015), and the D.C. Circuit, in Heller v. District of Columbia, 670 F.3d 1244 (D.C. Cir. 2011), had both applied intermediate scrutiny “after rather cursorily determining that the bans in those cases did not impose any significant burden on the Second Amendment right.”
Judge Robert B. King, who dissented from the strict scrutiny holding, noted that the Second Circuit also applied intermediate scrutiny to a similar firearms ban in New York, in N.Y. State Rifle & Pistol Ass'n v. Cuomo, 804 F.3d 242 (2d Cir. 2015).
The FSA banned, among other things, the possession, sale, purchase or transfer of an “assault weapon.” The plaintiffs here—two individuals, two sporting goods retailers and several hunting and firearms rights organizations—challenged the ban only as to “assault long guns,” defined to include most semiautomatic rifles “or their copies.”
Unlike automatic weapons, which fire continuously while the trigger is depressed, semiautomatic rifles require that the shooter pull the trigger separately for every round he wishes to discharge.
The FSA also banned, among other things, the manufacture, sale or purchase of detachable magazines with a capacity of more than 10 rounds. The court referred to such magazines as “larger-capacity detachable magazines” or “LCMs.”
The law included several exceptions, including one for retired law enforcement agents who had acquired the otherwise-banned weapon or LCM from the law enforcement agency on retirement.
The majority—for this part of the opinion, Traxler was joined by Judge G. Steven Agee—decided that this ban had to be subjected to strict scrutiny, rather than the intermediate scrutiny applied by the district court.
Relying on Heller, the court decided that “‘the right of law-abiding, responsible citizens to use arms in defense of hearth and home' lies at the core of the Second Amendment.”
It also decided that the weapons and accessories here were protected by the Second Amendment because they are “commonly possessed by law-abiding citizens for lawful purposes.”
It noted that millions of the weapons have been made or imported into the U.S. since 1990, that semiautomatic weapons have been in use for more than a century and that the weapons could be used for lawful self-defense in the home.
In response to Maryland's argument that the banned weapons were “unusually dangerous,” the court said that such a standard would be difficult to apply, and that in any event under Heller the weapons had to be both “‘dangerous' and ‘unusual.'”
Baum responded that in so doing, the court essentially read the word “dangerous” out of Heller, and ignored the usual presumption that the Supreme Court doesn't use words without meaning them.
The court also decided that the ban on LCMs failed because the right to possess firearms encompasses the right “to possess component parts necessary to make the firearms operable.”
Baum suggested that as far as LCMs go, the court “got the law right, but the facts wrong.” LCMs aren't “necessary” for a gun to be operable, because there are smaller capacity magazines that work just as well, he said.
He analogized the situation to a bow and arrow: “Those things are weapons, but quivers—portable cases for carrying arrows—aren't,” he said.
Because the “complete ban” on the most popular styles of semiautomatic rifles “significantly burdens the exercise of the right to arm oneself at home,” strict scrutiny was appropriate, the court decided.
The court “clearly asserted that this enumerated Constitutional right should not be subject to mere intermediate judicial scrutiny, and second-class status,” Selmi said.
King dissented from this portion of the opinion “wholeheartedly.”
“There is sound reason to conclude that the Second Amendment affords no protection whatsoever to the assault rifles” and other weapons and accessories “banned by the State of Maryland,” he said.
“Let's be real: The assault weapons banned by Maryland's FSA are exceptionally lethal weapons of war,” King wrote.
He noted that the weapons have “military-style features” which are exceptionally lethal; that the banned weapons “constitute no more than 3% of the civilian gun stock” with ownership concentrated in less than 1 percent of the population; and that “there is no known incident of anyone in Maryland using an assault weapon for self-defense.”
He also argued—citing to Friedman—that determining whether a weapon was constitutionally protected based on its popularity at the time of the litigation was circular, because if the weapon was banned, it wouldn't become popular.
Even assuming such weapons are protected, the ban is “put most succinctly, subject to nothing more than intermediate scrutiny.”
The FSA did not ban an entire class of guns, and left handguns and other weapons available for defense of the home, King said.
The court emphasized its decision “is not a finding that Maryland's law is unconstitutional,” merely that the parties should be allowed to develop their arguments “in light of this more demanding standard.”
King was not assuaged, however. “I fear” that “the panel majority has guaranteed the demise of the FSA and other sensible gun control within this Circuit,” he said.
“To put it mildly, it troubles me that, by imprudently and unnecessarily breaking from our sister courts of appeals and ordering strict scrutiny here, we are impeding Maryland's and others' reasonable efforts to present the next Newtown—or Virginia Tech, or Binghamton, or Fort Hood, or Tucson, or Aurora, or Oak Creek, or San Bernardino.”
Massacres like these “profoundly affect legislatures,” Baum said. They're “doing what they can to prevent this from happening again.” Such events “do have a significant impact on these laws—and should,” he said.
Baum declined to speculate whether Maryland would appeal the decision, but said that if it did the organizations he represents “would be there fighting with them.”
He also said that if and when the case returns to trial, he hopes the state “won't have to carry the burden” of strict scrutiny, but that even if it does he thinks it's a “winnable” case.
Selmi said that it was time for the Supreme Court to “finally resolve” the circuit splits over level of scrutiny “that threaten the preservation of the Second Amendment,” and to “address the judicial activism that has undermined Heller.”
Baum suggested, however, that in the wake of the denial of certiorari in Friedman, the Supreme Court “hasn't indicated it's unhappy with the state of affairs upholding bans.”
Agee was joined by King in deciding that the FSA's exception for retired police doesn't violate the equal protection clause of the Fourteenth Amendment.
The plaintiffs failed to establish—as required for an equal protection claim—that they were similarly situated to retired police, who were excepted from the ban, Agee wrote for the court.
He noted in particular that police “possess a unique combination of training and experience,” have “an unusual ethos of public service” and “face special threats”—including those from criminals they have arrested—“that private citizens do not.”
Even if they were similarly situated, excepting police officers was “directly related” to the state's objectives in keeping guns away from criminals while protecting legal gun ownership, Agee said.
Traxler dissented as to that holding. “I cannot discern how a retired officer's ability to wield a semi-automatic weapon with great adeptness for his personal use would promote public safety through the elimination of semi-automatic rifles like the AR-15,” he said.
The entire panel agreed, however, that the FSA's ban on “copies” of assault guns was not unconstitutionally vague.
“The plain meaning of the word” copy “is not beyond the grasp of an ordinary citizen,” and the word “has a plainly legitimate sweep,” the court said.
John Parker Sweeney of Bradley Arant Boult Cummings LLP, Washington, represented the plaintiffs. Matthew John Fader, of the Office of the Attorney General of Maryland, Baltimore, represented the state.
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