Full 4th Circuit takes on Maryland gun case that prompted Locke brief

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  • The full 4th US Circuit Court of Appeals spent 90 minutes Wednesday wrestling with a gun rights case from Maryland that has attracted attention from the John Locke Foundation.
  • Second Amendment supporters challenge Maryland's ban on the AR-15 rifle and other "assault weapons."
  • Locke has joined a friend-of-the-court brief asking the US Supreme Court to take the case before the 4th Circuit issues a decision.

The full 15-member 4th US Circuit Court of Appeals displayed clear divisions Wednesday when considering Maryland’s law banning the AR-15 rifle and other guns described as assault weapons.

Meeting in a rare “en banc” hearing, the full court spent nearly 90 minutes discussing Bianchi v. Brown. It’s a case that prompted a friend-of-the-court brief from the John Locke Foundation this month at the nation’s highest court.

Questions from the bench suggested that some judges are ready to uphold Maryland’s weapons ban. Others prefer to send the case back to a trial court to address unresolved issues. One key issue is whether the banned weapons are considered “in common use.”

Second Amendment groups challenging the law cite the US Supreme Court’s 2022 decision in New York State Rifle and Pistol Association v. Bruen. That case clarified gun rights set out in the 2008 case District of Columbia v. Heller.

“What Bruen is looking for is historical principles,” argued Peter Patterson for the law’s challengers. “What is the principle that allowed regulation? What Heller held is that the principle that allowed the regulation of firearms is that they are dangerous and unusual. If they’re in common use, they by definition do not fit within that history.”

Patterson cited evidence that weapons targeted in Maryland’s law are common and enjoy protection from state government regulation. “The latest production data shows that there are over 28 million of these firearms in the nation,” he said. “We also have firearms retailer data. That data shows that, for the past decade, these have been approximately 20% of all firearms sales in this nation, behind only semi-automatic pistols.”

Defending the law, Maryland Assistant Attorney General Robert Scott questioned the plaintiffs’ reading of the Heller and Bruen precedents.

“The plaintiffs’ position is if the gun is popular it can’t be banned — it can’t be banned at all regardless of how dangerous it is,” Scott said. “That’s not consistent with Heller.”

The Supreme Court has said that M-16s and “military-type weapons” are not protected, Patterson said. “Either they’re not covered by the textual definition … and therefore excluded from Second Amendment protection, which is our position, or they are consistent with a historical tradition of regulating and/or banning dangerous weapons.”

Judge Robert King referenced the ban on M-16s. “We’re talking about M-16s and the like,” King said. “The AR-15 is the M-16. … This is the like.”

Judge Harvie Wilkinson questioned efforts to block Maryland from regulating increasingly dangerous weapons.

“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,” Wilkinson said. “If you hold the states powerless as technology devises more and more lethal models to these weapons, we are putting our society at gradually increasing increments of risk.”

Chief Judge Albert Diaz targeted Patterson’s position that a commonly used weapon automatically enjoys constitutional protection. “There’s no limit. Essentially, once the cat is out of the bag, the Second Amendment trumps all. That is your position,” Diaz said.

On the other side of the argument, Judge Paul Niemeyer emphasized, “We’re talking about a constitutional right that’s defined by the right to keep and bear bearable arms.”

“The [Supreme] Court said in the abstract, that is without limit,” Niemeyer said. “The limits imposed are recognized as part of the right, but the burden of showing the limits is on the state.”

“The court has said, again and again, it has to be dangerous and unusual,” Niemeyer added. “I don’t know why we want to diverge or second-guess the court so blatantly.”

Niemeyer favored sending the case back to a trial court to address constitutional tests set out in the Bruen decision.

“The whole point was that any instrument that’s a bearable arm is presumptively protected,” he said. “Then it comes on your burden to show that it’s not suited or whatever you want to argue. But my point is we’re just ignoring the Second Amendment.”

Judge Roger Gregory questioned the Supreme Court’s guidance. “The problem is when the court names the M-16 and carves it out, that’s fine, but the test they give us doesn’t give us reasoning to take … a weapon like the AR-15 out as well.”

While Bianchi v. Brown sits with the 4th Circuit, the John Locke Foundation helped file a friend-of-the-court brief in the case at the Supreme Court.

Second Amendment supporters petitioned the high court on Feb. 8 to take the case before the 4th Circuit issues a ruling.

A friend-of-the-court brief filed at the high court on March 13 had backing from Locke, the Independence Institute of Colorado, and the International Law Enforcement Educators and Trainers Association.

“The rifles banned by Maryland are excellent arms for lawful defense of self and others,” according to the brief. “Because the banned rifles fire ammunition that is less powerful than most other rifle ammunition, the recoil is lower. Hence, accuracy and comfort are greater. For accuracy, ergonomics, and other safety-related reasons, the banned arms are often chosen by law enforcement officers and by law-abiding citizens for lawful defense of self and others.”

“The rifles are not machine guns; they fire at the same rate as common handguns,” the brief continued. “They are less powerful than most other rifles. The wounds they cause are generally less severe than wounds from other long guns.”

“By mischaracterizing these firearms, the Fourth Circuit implicitly disparaged law enforcement officers,” the document added. “In America, the ordinary arms of civil peace officers are not weapons of war, and peace officers not an army of occupation.”

The brief challenges an earlier 4th Circuit ruling in the 2017 case, Kolbe v. Hogan. In that case, the full 4th Circuit “called the AR-15 and other banned semiautomatic rifles ‘exceptionally lethal weapons of war,’ unsuitable for self-defense, and with ‘a capability for lethality – more wounds, more serious, in more victims – far beyond that of other firearms in general, including other semiautomatic guns.’”

“If the claims were true, and the rifles were actually super-guns useful only for mass slaughter, typical American peace officers would not choose them, nor could they be allowed to,” the friend-of-the-court brief argued.

The document offers a brief history of the “AR platform” and describes its pros and cons for defense. “An AR rifle is superb for putting a bullet on target. The trade-off is that the AR is inferior to most other rifles in being able to stop an attacker with one hit,” according to the brief.

“There is no ‘best’ type of gun for self- or home-defense,” the document continued. “Different guns are best in different situations for different defenders. That is why law enforcement officers usually have a handgun in a holster and different arms in the patrol car. Many citizens also have more than one type of firearm. The Second Amendment guarantees citizens the individual right to choose any common arm.”

The 4th Circuit’s previous findings about banned rifles firing at the same rate as automatic weapons are “impossible,” according to the brief.

“Because any semiautomatic fires only one round for each trigger pull, the user would have to pull the trigger five-to-eight times per second for an entire minute,” according to the brief. “That would take a superhuman trigger finger, especially when pulling against the several pounds of force required to press a trigger. The 300-to-500-rounds-per-minute pseudo-fact came from an unsourced claim by a gun-control advocate in 1991.”

The brief rebuts arguments about AR ammunition’s “massive wounding power” and other safety concerns. “Some gun ban advocates assert that AR rounds are more likely to penetrate the walls within a building. To the contrary, AR bullets generally penetrate less through building materials than do common handgun rounds,” the brief explained. “That is one reason law enforcement officers often use ARs for raiding buildings and barricaded hostage situations.”

A legal victory for Maryland could have negative implications for police across the country, the brief suggested.

“If Maryland prevails because AR rifles are held to be mass murder weapons, police use of patrol rifles may trigger complaints of excessive use of deadly force,” the document explained. “Although law enforcement officers are exempted from the ban, they are not excused from the consequences of using excessive force.”

“Law enforcement officers are not soldiers wielding weapons of war, and their interactions with citizens are not governed by rules of engagement for the battlefield. The challenged statute implicitly denigrates peace officers by treating them like an occupying army,” according to the brief.

“Such negative attitudes make the public less willing to cooperate with law enforcement and damage community relations.”

Jon Guze, Locke’s senior fellow in legal studies, signed the brief. David Kopel of the Independence Institute and Campbell Law School professor Greg Wallace, representing the law enforcement educators group, also signed the document.