Maryland Circuit Court Upholds 2013 Ban on MSRs

   02.22.17

Maryland Circuit Court Upholds 2013 Ban on MSRs

Yesterday, Maryland’s 4th Circuit Court of Appeals proved its willingness to invent “facts” in order to rule against freedom, by reversing an earlier stance which effectively negated Maryland’s 2013 ban (FSA) on scary-looking semi-automatic rifles.

I say “scary-looking” because that seems to be what it boils down to. Guns which look like military arms are banned by the 2013 law, which bars the sale, possession, transfer, or purchase of a long list of semi-automatic rifles–all of which resemble military rifles, but none of which are machine guns or fully automatic.

The list, contained in the text of the court decision, also lists several specific shotguns and a blanket ban on any semiautomatic shotgun that has a folding stock.

The ban also applies to what they call “assault pistols,” but those are not listed in the court decision because the plaintiffs did not challenge that part of the ban.

The  FSA  provides that a person may neither ‘transport an assault weapon into the State’ nor ‘possess, sell, offer to sell, transfer, purchase, or receive an assault weapon.’  See Md. Code Ann., Crim. Law § 4-303(a). The  banned  assault  weapons include ‘assault long gun[s]’ and ‘copycat weapon[s].’

The ban itself is incredibly wide in scope, and as I understand it, yesterday’s court decision pretty much restores it to enforceable status.

The ban was passed in April 2013 and became effective on October 1 of that year. A complaint was filed on September 26, 2013 to challenge the law and block its enforcement via a temporary restraining order. A hearing on October 1 denied that request.

On November 22, 2013, a Third Amended Complaint was filed, which “allege[d] the FSA is facially unconstitutional in four respects: (1) the  assault  weapons ban contravenes the Second Amendment; (2) the   prohibition against large-capacity magazines also violates the Second Amendment; (3) the provision allowing receipt and possession of assault weapons and large-capacity magazines by retired Maryland law enforcement officers contravenes the Equal Protection Clause of the Fourteenth Amendment; and (4) the provision outlawing ‘copies’ of the rifles and shotguns enumerated in section 5-101(r)(2) of the Public  Safety Article violates the Fourteenth Amendment’s Due Process Clause by being too vague to provide adequate notice of the conduct proscribed.”

The ban was upheld in 2015 by U.S. District Judge Catherine Blake, but in 2016 that decision was reversed by a panel of circuit court judges. Tuesday’s decision, rendered by a majority of judges in a larger panel, once again upheld the ban.

The decision contains long and tiresome text alleging that the banned firearms are too much like military weapons for the public to possess and continually compares semi-automatic rifles with the M16. This is what I meant about the invention of “facts.” None of the banned semi-automatic firearms are the same as the M16 (and even if they were, they are still protected under the Second Amendment in my opinion).

The decision also states the following:

For their part, the plaintiffs have purported to dispute the State’s evidence equating  the FSA-banned assault weapons with the M16, but have not  produced evidence  actually demonstrating that the banned assault weapons are less dangerous than or  materially distinguishable from military arms. Otherwise, the plaintiffs have emphasized the popularity of the banned assault weapons, particularly the AR-15, semiautomatic AK-47, and their copies. Those weapons are often referred to by the  plaintiffs, and in their evidence, as ‘modern sporting rifles.’

And this:

According to the plaintiffs, they are entitled to summary judgment on the simple premise that the banned assault weapons and large-capacity magazines are protected by the Second Amendment and, thus, the FSA is unconstitutional per se. We conclude, to the contrary, that the banned assault weapons and large-capacity  magazines are not constitutionally protected arms. Even assuming the Second  Amendment reaches those weapons and magazines, however, the FSA is subject to—and readily survives—the intermediate scrutiny standard of review.

Citing the D.C. vs. Heller decision’s statement that citizens’ Second Amendment right “extends only to certain types of weapons,” the 4th Circuit Court makes it clear that they are ready and willing to support a ban on anything and everything not specifically cited as being protected in the Heller decision.

We could resolve the Second Amendment aspects of this appeal by adopting the district court’s sound analysis and thereby follow the lead of our distinguished colleagues on the Second and District of Columbia Circuits. That is, we could simply assume that the assault weapons and large-capacity magazines outlawed in Maryland are protected by the Second Amendment and then deem the FSA constitutional under the intermediate scrutiny standard of review. It is more appropriate, however, in light of the dissent’s view that such constitutional protection exists, that we first acknowledge what the Supreme Court’s Heller decision makes clear: Because the banned assault weapons and large-capacity magazines are ‘like’ ‘M-16 rifles’—’weapons that are most useful in military service’—they are among those arms that the Second Amendment does not shield.

This decision reflects poorly on the court’s understanding of the Constitution, but of course that’s nothing new.

A statement of dissent written by Judge William Traxler and joined by three other judges vigorously disagrees with the decision:

In concluding that the Second Amendment does not even apply, the majority has gone to greater lengths than any other court to eviscerate the constitutionally guaranteed right to keep and bear arms.

In addition, the majority holds that even if it is wrong when it says that the Second Amendment does not cover these commonplace rifles, Maryland can still lawfully forbid their purchase, even for self defense in one’s home-the core Second Amendment right. [The majority] do not believe this ruling impairs the rights citizens have under the Constitution to any significant degree.

In my view, the burden imposed by the Maryland law is considerable and requires the application of strict scrutiny, as is customary when core values guaranteed by the Constitution are substantially affected.

Traxler also calls out the singularity of this decision:

The majority says first that the Second Amendment does not even apply to modern semiautomatic rifles or magazines holding more than ten rounds. In doing so, the majority stands alone from all the other courts to have considered this issue.

Only time will tell how this will all shake out. I’m encouraged by the sensibility of the minority, but discouraged that they have been overruled by a majority of “judges” who seem unwilling to obey the core law of our land.

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