- The Washington Times - Thursday, February 4, 2016

A federal appeals court challenged the legality of Maryland’s assault weapon and high-capacity magazine ban on Thursday, saying the law infringes on the Second Amendment’s right to bear arms.

The U.S. Court of Appeals for the 4th Circuit, in a 2-1 ruling, ordered the original district judge to use stricter constitutional standards in reconsidering an earlier decision that upheld the ban.

“In our view, Maryland law implicates the core protection of the Second Amendment,” Chief Judge William B. Traxler Jr. wrote in the majority opinion. He added that the law “significantly burdens the exercise of the right to arm oneself at home.”

Maryland’s ban was enacted in 2013 in the wake of the Sandy Hook Elementary School shooting in Newtown, Connecticut. It prohibits the sale or ownership of 45 types of military-style rifles, and of magazines that hold more than 10 rounds of ammunition.

Proponents of the law, including Maryland Attorney General Brian E. Frosh, said most mass violence incidents have involved military-style weaponry and high-capacity magazines, and such weapons are not necessary for self-defense.

“There is sound reason to conclude that the Second Amendment affords no protection whatsoever to the assault rifles and shotguns, copycat weapons and large-capacity detachable magazines that are banned by the state of Maryland,” said Mr. Frosh, who was a state senator and a driving force behind enactment of the law in 2013.

U.S. District Judge Catherine C. Blake in Baltimore upheld the ban in 2014, ruling that the law promotes public safety without trampling on core constitutional rights. She used a standard known as “intermediate scrutiny,” which tests whether a law furthers an important government interest in a way that is substantially related to that interest.

But the appeals court, based in Richmond, Virginia, said U.S. Supreme Court precedents established that individuals do have a fundamental right to own firearms and that Maryland’s law appears to be a ban on entire classifications of weapons. The court majority said laws that go that far must be subjected to the strictest scrutiny — which requires a law to be narrowly tailored and the least restrictive means to further a compelling government interest — something the lower court didn’t do.

“This is not a finding that Maryland’s law is unconstitutional. It is simply a ruling that the test of its constitutionality is different from that used by the district court,” Judge Traxler wrote.

The Supreme Court held in the 2008 Heller case and the 2010 McDonald v. City of Chicago case that the Second Amendment applies to individuals and guarantees their right to arms — though the court said governments can impose reasonable restrictions to protect public safety.

Both sides in the gun rights debate now are arguing over the boundaries of those restrictions, with several other appeals courts having upheld bans similar to Maryland’s.

John P. Sweeney, attorney for gun rights supporters who challenged the law, declined to comment, but a National Rifle Association official declared the ruling “an affirmation of the Heller decision and a victory for the Second Amendment.”

Chris Cox, executive director of the NRA’s Institute for Legislative Action, said his group is “optimistic that when the lower court applies the strict scrutiny standard, it will overturn Maryland’s ban on firearms commonly used for self-protection. Today’s victory underscores the importance of electing a president who believes in the Second Amendment and will appoint judicial nominees who will uphold the Constitution.”

Judge Robert B. King, the dissenting vote in Thursday’s ruling, wrote that the types of weapons banned by Maryland hardly constitute a Second Amendment violation.

“Let’s be real: The assault weapons banned by Maryland’s [law] are exceptionally lethal weapons of war,” Judge King wrote. “I am far from convinced that the Second Amendment reaches the AR-15 and other assault weapons prohibited under Maryland law, given their military-style features, particular dangerousness, and questionable utility for self-defense.”

Judge King said he sees no substantive difference between an automatic rifle, which is banned, and a semiautomatic rifle. Both, he said, can fire dozens of rounds in mere seconds.

He said that by sending the case back to the lower court, the majority judges could be inviting another mass shooting. He went on to list mass shootings: “the next Newtown — or Virginia Tech, or Binghamton, or Fort Hood, or Tucson, or Aurora, or Oak Creek, or San Bernardino.”

His colleagues bristled at what they said was a suggestion that they would have blood on their hands.

“In our view, inferences of this nature have no place in judicial opinions,” they said.

The appeals court said Maryland’s law affects the constitutional right to possess firearms for self-defense and home protection by banning virtually an entire class of weapons commonly owned by law-abiding citizens. In 2012, the number of semi-automatic rifles manufactured and imported into the United States — and banned by Maryland law — was more than double the number of Ford F-150 trucks sold, the appeals court said.

Also, more than 75 million high-capacity magazines are in circulation, the court said.

The appeals court also rejected the state’s claims that the banned weapons fall outside the Second Amendment because they are “unusually dangerous,” and there is no evidence that those weapons have been used for self-defense.

Mr. Frosh said that, for now, the ban remains in effect in the state and that he will appeal — either to the full 4th Circuit or to the Supreme Court.

Gov. Larry Hogan, a Republican, did not have a comment on the ruling. He did not support the legislation when it was passed in 2013 but has said he accepts the measure as law.

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