Maryland Ban on Assault Weapons Upheld

The U.S. Court of Appeals for the Fourth Circuit recently held that the Second Amendment does not protect military-type assault rifles and large capacity ammunition magazines, upholding a Maryland law banning such weapons. The en banc decision reversed an earlier decision by a three-judge panel that held the ban unconstitutional.

In 2013, the General Assembly of Maryland enacted the State’s Firearm Safety Act
(the “FSA”), which bans the AR-15 and other military-style rifles and shotguns (referred to as “assault weapons”) and detachable large-capacity magazines. The legislation was a response to mass shootings in Newtown, Connecticut, Aurora, Colorado, and San Bernardino, California, in which the shooters killed multiple victims using assault rifles and large-capacity magazines. The plaintiffs in Kolbe v. Hogan, No. 14-1945, 2017 WL 679687 (4th Cir. Feb. 21, 2017) (en banc), aff’g Kolbe v. O’Malley, 42 F. Supp. 3d 768 (D. Md. 2014), contested the constitutionality of the FSA with two Second Amendment claims—one aimed at the assault weapons ban, the other at the prohibition against large-capacity magazines—plus Fourteenth Amendment equal protection and due process claims. The court concluded that:
[W]e are convinced that the banned assault weapons and large-capacity magazines are among those arms that are ‘like’ ‘M-16 rifles’ ‘weapons that are most useful in military service’ which the [Supreme Court in Columbia v. Heller, 554 U.S. 570, 627 (2008)] singled out as being beyond the Second Amendment’s reach. . .Put simply, we have no power to extend Second Amendment protection to the weapons of war that the Heller decision explicitly excluded from such coverage. Nevertheless, we also find it prudent to rule that—even if the banned assault weapons and large-capacity magazines are somehow entitled to Second Amendment protection—the district court properly subjected the FSA to intermediate scrutiny and correctly upheld it as constitutional under that standard of review.
The Supreme Court has refused to review decisions from four other Circuits upholding assault-weapons bans. But the Wall Street Journal suggested that the breadth of the language in the Kolbe decision may lead to Supreme Court review. A spokewoman for the National Rifle Association announced that “[i]t is absurd to hold that the most popular rifle in America is not a protected ‘arm’ under the Second Amendment,” because the Court held in Heller “that the Second Amendment protects arms that are ‘in common use at the time for lawful purposes like self-defense.'”
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