Locke joins SCOTUS brief in Maryland gun case

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  • The John Locke Foundation has helped file a friend-of-the-court brief at the US Supreme Court in a case challenging Maryland's ban on "assault weapons."
  • Second Amendment supporters hope the high court will take the case before the 4th US Circuit Court of Appeals holds a rare en banc hearing of all active judges in the case.
  • A previous 4th Circuit ruling from 2017 mischaracterized the guns targeted in Maryland's law, according to the brief.

The John Locke Foundation has helped file a friend-of-the-court brief at the nation’s highest court in a case challenging Maryland gun restrictions.

Second Amendment supporters filed a petition on Feb. 8 asking the US Supreme Court to take the case, Bianchi v. Brown, before the 4th US Circuit Court of Appeals could issue a ruling.

The full 4th Circuit agreed to consider the case in a rare “en banc” hearing involving all active members. The court made that decision after a three-judge 4th Circuit panel heard arguments in the case but before that panel issued a decision.

The lawsuit challenges Maryland’s ban on the AR-15 and other guns described by critics as “assault weapons.”

 A friend-of-the-court brief filed Wednesday at the high court has 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.