Are Assault Weapons Are Unconstitutional? A Federal Appeals Court in Maryland Says Yes

On Tuesday, February 21st, a decision a by Federal Appeals Court upheld Maryland’s ban on forty-five different kinds of assault weapons, as the Huffington Post reported.  In his decision, Judge Robert King, a Judge who had helped uphold the Maryland ban on assault weapons, wrote that weapons such as M-16s are “most useful in military service” and he opined that “we have no power to extend Second Amendment protections to weapons of war.”

The Federal Appeals Court also upheld Maryland’s ten-round limit on gun magazines, which are the parts of the weapons that hold the ammunition and feed it into guns in preparation for rapid-fire attacks. This decision will infuriate some and elate others. If a Federal Appeals Court upholds a state’s ban on assault weapons, it means that other states may also pass such bans.

Judge William Traxler Jr, a US Court of Appeals Judge for the Fourth Circuit, dissented; he disagreed with the premise that assault weapons should not be covered by the second amendment. Furthermore, he took opposition with his colleagues who had initially proposed Maryland’s ban, stating that they had “gone to greater lengths than any other court to eviscerate the constitutionally guaranteed right to keep and bear arms,” and emphasizing that

“as long as the weapon chosen is one commonly possessed by the American people for lawful purposes — and the rifles at issue here most certainly are […] the state has very little say about whether its citizens should keep it in their homes for protection.”

According to the National Rifle Association, the nation’s largest gun lobby, this decision overturns a ruling in 2016 by the United States Court of Appeals for the Fourth Circuit, which had held that citizens have a “fundamental right” to carry such weapons.Supporting Traxler’s view, National Rifle Association spokeswoman Jennifer Baker stated that “it is absurd to hold that the most popular rifle in America is not a protected ‘arm’ under the Second Amendment,” and made the case that the decision “clearly ignores the Supreme Court’s guidance from District of Columbia v. Heller that the Second Amendment protects arms that are ‘in common use at the time for lawful purposes like self-defense.’”

The Second Amendment’s protection of gun ownership, as of the Maryland decision, can now be limited — if other states do pass such bans —  to people’s right to own handguns for the purpose of self-defense, but only inside their homes. In essence, this decision redefines assault weapons as being suited to combat and to use by the military, and carves out separately the domestic self-defense role of handguns, which are different, and much less broadly lethal, weapons. (Assault weapons have played a role in many US massacres.)

Gun control advocates have long pushed for a new national ban on assault rifles, but the gun lobby has stood firm against that approach. Will decisions at a state level pass such bans, effectively, state by state now?

Seven states have now implemented assault weapon bans: three were enacted before the 1994 national ban, and four were passed after the ban expired. Not including Maryland, these states are: California, Connecticut, District of Columbia, Hawaii, Massachusetts, New Jersey, and New York. All of these assault weapons bans on these states levels are currently in force. In addition, both Minnesota and Virginia have training and background check requirements for purchases of assault weapons that are considerately more stringent than are those for other states. Additionally, local bans for counties and cities exist in Colorado and Illinois.

The Maryland decision comes after a series of earlier gun laws had been passed limiting the availability of assault weapons, including the Federal Assault Weapons Ban. In force between 1994 and 2004, this weapons ban was passed after thirty-four children and teachers were killed in a Stockton, California shooting. According to CNN, the ban also forbade the use high-capacity magazines, and the importing of semiautomatic rifles. After ten years, the ban had become defunct, because of a 10-year “sunset provision.”

In 2013, in the aftermath of the Sandy Hook, Connecticut, elementary school massacre — which in turn followed other school shootings across the country — then-Governor Martin O’Malley (D—MD) signed Maryland’s Firearm Safety Act. According to the Washington Post, this statute included new fingerprinting and training requirements for handgun purchasers, as well as a ban on forty-five types of assault rifles, and a ban on magazines that hold more than 10 rounds. This Act would have imposed criminal penalties of up to three years in prison for violators; however, the law was challenged in Federal court by two Maryland gun owners and a number of gun shops and gun rights groups in February of 2016. In an email to supporters, Governor O’Malley reflected on the racially charged shooting at an historically black church in Charleston, South Carolina on June 17th, 2015, which  had left nine people dead:

“This is not the America we want to be living in […] I’m pissed that we’re actually asking ourselves the horrific question of, what will it take? How many senseless acts of violence in our streets or tragedies in our communities will it take to get our nation to stop caving to special interests like the NRA when people are dying?”
When asked about an appeal, NRA spokesperson Jennifer Baker responded that they are exploring all options.