Maryland’s “assault weapons” ban was passed following the 2012 massacre of 20 children and six adults at an elementary school in Newtown, Connecticut. The state banned less common semi-automatic “assault pistols” in 1994. The laws cover some, but not all semi-automatic rifles, including those that hold more than 10 rounds or are shorter than 29 inches. long. Rifles compatible with detachable magazines cannot have both a folding stock and a flash suppressor or grenade launcher, per law.
The lead plaintiff in the case, a Baltimore paramedic, said in court documents he would like to carry a Desert Tech MDRX rifle, described by its manufacturer as “built to survive the harshest military conditions.” . The gun only carries 10 rounds but is covered by the ban due to its relatively small size.
Maryland’s restrictions were upheld by the 4th Circuit in 2017, but that precedent is in doubt after a Supreme Court ruling this year overturning New York’s “just cause” requirement for carrying a concealed handgun. Similar permit systems in six states, including Maryland, are now in legal jeopardy.
Plaintiffs’ attorneys argued that the Supreme Court has now made it clear that “the only historically acceptable (meaning also the only constitutionally acceptable) justification for banning the types of weapons is that they are “dangerous and unusual” times.
“Law-abiding citizens have the right to use firearms that are in common use today,” Peter A. Patterson, representing gun advocates, said Tuesday.
The “dangerous and unusual” language stems from a 2008 Supreme Court ruling overturning a DC ban on all handguns. This decision established an individual right to bear arms, but ruled that many existing gun regulations were “presumed lawful”. This year, the court ruled that such restrictions are presumptively unconstitutional unless proven “consistent with this nation’s historic tradition of gun regulation.”
The only such regulations the court identified prohibiting certain types of firearms were colonial-era prohibitions on “dangerous and unusual” weapons that “caused fear or terror.”
And semi-automatic rifles are incredibly popular among gun buyers. A 2021 survey estimates that about 30% of gun owners have owned an AR-15 or similar rifle; more than half owned a firearm with more than 10 cartridges. There are nearly 25 million semi-automatic rifles in circulation, according to a firearms trade association.
Judge Paul V. Niemeyer, who would have struck down Maryland’s law as unconstitutional five years ago, said during oral argument that the 4th Circuit’s reasoning was now “inconsistent” with Supreme Court precedent.
“Weapons usually start in the military and gravitate or migrate to the civilian population,” he said. “The determinant is…if it is in common use.”
Judge Stephanie Thacker, who joined the majority in the 2017 case, wondered if there was a limit to this test. “If gun dealers were flooding the market with grenade launchers or nuclear weapons, and everyone wanted to buy them for self-protection, would that be in common use for lawful purposes?” she asked.
“The Supreme Court said, ‘We trust the American people,'” Patterson replied.
The plaintiffs also argue that semi-automatic weapons are not particularly dangerous given that most murders are committed with handguns. Research indicates that banning high-capacity magazines reduces firearm deaths; plaintiffs do not challenge Maryland’s ban on magazines holding more than 10 rounds.
Maryland counters that the banned firearms are “new weapons that pose heightened dangers to public safety.” It “remains an open question” which weapons are “dangerous and unusual” according to the Supreme Court’s latest ruling, Maryland Assistant Attorney General Robert Scott said during his closing argument.
“It’s a limitation” on gun rights, Scott said.
If the court is unconvinced, the state wants a chance to probe just how common and useful these weapons are, saying the plaintiffs rely on a handful of investigations and anecdotes. “We dispute that these weapons are commonly used for self-defense,” Scott said.
Democrats have resumed discussion of a nationwide ban on assault weapons following a shooting at an LGBTQ club in Colorado in which five people were killed and 18 injured. A ban enacted under President Bill Clinton in 1994 expired under George W. Bush in 2004.