A federal appeals court upheld a Maryland ban on “assault weapons” last week, but with the case potentially being considered by the Supreme Court, gun rights advocates have their hopes set high for a ruling that could upend gun legislation across the country.
The 4th U.S. Circuit of Appeals ruled 10-5 on August 6 saying the 2013 Maryland assault weapons ban instituted in the wake of the Sandy Hook School Shooting was constitutional, with Judge James Wilkinson writing that so-called “assault weapons” were “ill-suited and disproportionate to the need for self-defense.” The Firearms Policy Coalition (FPC) announced on the day of the ruling that it plans to appeal the decision, along with plaintiffs, to the Supreme Court.
“The semi-automatic rifles, in this case, are very clearly ‘arms’ under the plain definition of the word in the Second Amendment, and the burden falls on Maryland to demonstrate some sort of historical analog for their ban,” Cody Wisniewski, president and CEO of the FPC Action Foundation, told the Daily Caller News Foundation. “They can’t do so for several reasons, including the fact that the only viable historical analog that the Supreme Court has identified for a ban on arms is that they’re ‘dangerous and unusual’ and that isn’t the case as these rifles are in common use by millions of people.” (RELATED: Kamala Harris Once Called For Forced Buybacks Of ‘Assault Weapons.’ It’s Not That Easy, Experts Say)
The Supreme Court will hear oral arguments for cases starting this October, according to the October 2024 term schedule. Wisniewski said he was hopeful that the Supreme Court would take up the case even after they declined during the previous term, as the 4th Circuit has made a final decision on the facts of the case.
“Justice [Clarence] Thomas indicated all the cases at the time were all on what he called interlocutory posture, as they were all on the court before there was a final merit decision by the circuit court,” Wisniewski told the DCNF. “We know this is the right time for the court to step in and address this issue.”
Todd Vandermyde, a gun rights advocate and consultant for plaintiffs in an Illinois lawsuit challenging the state’s ban on certain magazines, told the Center Square that it was likely SCOTUS would take up the case due to the 4th Circuit ruling having major problems.
“It just so flies in the face of the common use test, modern guns are protected, all the things that have been reiterated through [previous Supreme Court precedent], I think this thing is just so bad that they’re going to take it,” Vandermyde told the Center Square.
The case, Bianchi v. Brown, was filed in December 2020, with the individual plaintiffs joined by the FPC, Second Amendment Foundation and the Citizens Committee for the Right to Keep and Bear Arms, according to court filings. The initial petition for certiorari was rejected by the Supreme Court in May, likely waiting until the 4th Circuit to issue its ruling, which would give the case a more comprehensive record, according to the NRA.
Smith & Wesson M&P-15 semi-automatic rifles of the AR-15 style are displayed during the National Rifle Association (NRA) annual meeting at the George R. Brown Convention Center, in Houston, Texas on May 28, 2022. (Photo by PATRICK T. FALLON/AFP via Getty Images)
The decision has been met with a slew of criticisms, most notably from the five dissenting judges on the 4th circuit. Judge Jay Richardson wrote in dissent that the ruling that AR-15s and other “assault weapons” fall under the plan definition of “arms” in the Second Amendment and are entitled to the same protections.
“The Second Amendment is not a second-class right subject to the whimsical discretion of federal judges,” Richardson wrote. “Its mandate is absolute and, applied here, unequivocal.”
Wisniewski added that the court’s conservatives would likely take inspiration from and consider arguments from Richardson’s dissent if it ruled against the Maryland law.
“I certainly think that when you have such a powerful and fully thought-out dissent, such as this one, that it’s going to be imparted to the court,” Wisniewski told the DCNF. “It’s almost certain, I suppose, that the Supreme Court would review that dissent, and in reviewing, it certainly may impact their opinion or decision.”
Gun control groups have argued, like the opinion of the 4th Circuit, that “assault weapons” do not fall under Second Amendment protection. Everytown for Gun Safety, a pro-gun control organization, wrote an amicus brief in February in support of the Maryland ban, saying that the 2022 Bruen decision applies to arms commonly used for self-defense, and the plaintiffs in the case did not meet “their burden to show that the regulated assault weapons are in common use for self-defense.”
“We’re pleased that the Fourth Circuit saw reason and ruled to protect Marylanders from these instruments of mass violence,” Everytown deputy director of Second Amendment litigation Bill Taylor said in a press release. “In the wake of the Supreme Court’s decisions in Bruen and Rahimi, we have seen an overwhelming trend of lower court rulings upholding these crucial laws. We will fight to ensure this trend continues.”
The Maryland Attorney General’s Office did not immediately respond to the Daily Caller News Foundation’s request for comment.
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