A federal appeals court on Wednesday appeared likely to reject arguments that Maryland's ban on assault weapons is unconstitutional in light of a 2022 ruling by the conservative-majority U.S. Supreme Court that broadly expanded gun rights.
Several judges on the 15-member 4th U.S. Circuit Court of Appeals expressed skepticism that the right to keep and bear arms under the U.S. Constitution's Second Amendment bars states from banning dangerous weapons like the AR-15 semiautomatic rifle.
"The historical practice of firearms regulation has been whenever new technologies have arrived on the scene, the states have not been defenseless in the face of technological advances," said U.S. Circuit Judge Harvie Wilkinson, an appointee of Republican former President Ronald Reagan.
The lawsuit is one of three Second Amendment cases the 4th Circuit is hearing this week en banc, or as a full court. The court has nine active judges appointed by Democratic presidents, including Nicole Berner, who participated in the arguments after winning Senate confirmation on Tuesday, and six judges who are Republican appointees.
Maryland enacted its ban after a shooter used a semi-automatic rifle in the 2012 mass killing of 20 children and six adults at Sandy Hook Elementary School in Newtown, Connecticut.
The 4th Circuit decided in January to have the full court consider Maryland's law even though a three-judge panel had yet to rule after hearing arguments in the case in December 2022.
Peter Patterson, a lawyer for several gun rights groups challenging the ban, argued that under the U.S. Supreme Court's 2022 ruling in New York State Rifle & Pistol Association v. Bruen, Americans have a right to possess arms that are in common use, including the popular AR-15.
That decision, by the court's 6-3 conservative majority, established a new test for assessing firearms laws, saying restrictions must be "consistent with this nation's historical tradition of firearm regulation."
"When you apply that test to semi-automatic rifles, it cannot be sustained," Peterson said.
He said that under that ruling and the court's earlier precedents, the government is barred from banning a class of firearms unless it was "highly unusual in society at large."
Chief U.S. Circuit Judge Albert Diaz said under the position advanced by the gun rights groups, including the Second Amendment Foundation and Firearms Policy Coalition, if a dangerous weapon is not banned and becomes commonly used, "the cat's out of the bag" and it can never be regulated.
"What about a bazooka that's used for recreational purposes?" Diaz, an appointee of Democratic former President Barack Obama, asked. "A tactical nuclear weapon?"
U.S. Circuit Judge Robert King noted that the Supreme Court's earlier 2008 gun rights ruling District of Columbia v. Heller allowed weapons more useful for military service to be banned, with the late conservative Justice Antonin Scalia calling out "M-16 rifles and the like" specifically.
"We're talking about M-16s and the like," King, an appointee of Democratic former President Bill Clinton, said. "And the AR-15 is the M-16."
U.S. Circuit Judge Paul Neimeyer, an appointee of Republican former President George H.W. Bush, appeared more open to the challenge, saying it was the state's burden to "show that it's both dangerous and unusual through some historical analog."
He suggested the 4th Circuit should send the case back to the district court to assess to what extent any assault weapons covered by Maryland's law are in common use.
The case is Bianchi v. Brown, 4th U.S. Circuit Court of Appeals, No. 21-1255.
For the Maryland plaintiffs: Peter Patterson of Cooper & Kirk
For Maryland: Robert Scott of the Office of the Maryland Attorney General
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