A federal appeals court on Tuesday upheld Maryland’s ban on assault weapons, with impassioned majority and dissenting opinions that sparred over how recent Supreme Court gun rights precedents should apply to the case.
The challenge to Maryland’s law is one of dozens of gun rights lawsuits that have required judges to examine firearms regulations under a stringent, history-focused test that the Supreme Court laid in 2022. While scores of other types of gun regulations have been struck down under the new precedent, the 4th US Circuit Court of Appeals said the ban on semiautomatic weapons did not run afoul of the Constitution.
Writing for the 4th US Circuit Court of Appeals majority – which was hearing the dispute en banc, meaning before all of its active judges – Judge Harvie Wilkinson said that “we decline to wield the Constitution to declare that military-style armaments which have become primary instruments of mass killing and terrorist attacks in the United States are beyond the reach of our nation’s democratic processes.”
A dissent written by Judge Julius Richardson said that the majority opinion “disregards the Founders’ wisdom and replaces it with its own.”
The ruling, Richardson wrote, “grants states historically unprecedented leeway to trammel the constitutional liberties of their citizens.”
Having upheld the Maryland ban in 2017, the 4th Circuit was reconsidering the law’s constitutionality in light of the Supreme Court’s 2022 ruling known as Bruen that instructed courts to look to history when assessing a gun regulation’s compliance with the Second Amendment. Tuesday’s 4th Circuit opinion also comes on the heels of a Supreme Court opinion this summer where the justices upheld a ban on individuals subject to domestic violence restraining orders from possessing firearms.
The Supreme Court has declined recent opportunities to hear cases weighing the constitutionality of assault weapons bans and, when the Maryland challenge was appealed to the justices in an earlier phase of the litigation, the high court sent the case back down for more proceedings under the 2022 precedent, leading to Tuesday’s opinion.
The 4th Circuit said Tuesday that, because they were “dangerous and unusual weapons,” the semiautomatic guns prohibited under the law were not covered by the Second Amendment’s protections. The majority also concluded that there were historical analogues to the Maryland statute that were adopted by state legislatures across the country in the 19th and 20th century.
“Whether these laws and regulations were wise or effective is surely a matter of debate,” Wilkinson, a Ronald Reagan appointee, wrote. “The point is, however, that legislatures were not disabled constitutionally from enacting them.”
The dissent vehemently disagreed with this read of the historical record, with Richardson writing that the “relevant history reveals no longstanding or well-settled practice of prohibiting the possession of certain weapons in England, colonial America, or the early American Republic.”
More broadly, the dissent said that the semiautomitic weapons covered by Maryland’s ban were “commonly possessed by millions of law-abiding American citizens for many different lawful purposes,” as it rejected the majority’s conclusion that the firearms were “dangerous and unusual” weapons not protected by the Constitution.
A concurrence written by Judge Albert Diaz, joined by several judges in the majority, said that the Supreme Court’s Bruen precedent “has proven to be a labyrinth for lower courts.” He pointed to the disagreement between a majority and the dissent opinions, and a third concurrence in the case that would have upheld the ban for different reasons.
“[C]ourts, tasked with sifting through the sands of time, are asking for help,” Diaz wrote, adding that the Supreme Court’s latest gun rights ruling “offered little instruction or clarity.”
Also on Tuesday afternoon, the en banc 4th Circuit court handed down a ruling in a separate gun rights case that rejected a challenge to a federal law prohibiting the possession of a firearm with an altered serial number.
The case prompted multiple concurrences and dissents that disagreed with how the majority was interpreting Bruen.
In its assault weapons ban opinion, the 4th Circuit ticked through references to three-dozen mass shootings, recalling some of the graphic language describing the scenes of those massacres.
“Certainly it would have been shocking to the Framers to witness the mass shootings of our day, to see children’s bodies ‘stacked up … like cordwood’ on the floor of a church in Sutherland Springs, Texas; to hear a Parkland, Florida high school student describe her classroom as a ‘war zone’ with ‘blood everywhere’; to be at a movie in Aurora, Colorado when suddenly gunfire erupted, leaving ‘bodies’ strewn and ‘blood on seats, blood on the wall, blood on the emergency exit door,’” Wilkinson wrote.
His opinion cited the quickness with which high-profile massacres took place, as it detailed shootings where dozens were killed or injured in a matter of seconds.
“These are not our forebears’ arms, and these are not our forebears’ calamities,” Wilkinson wrote.
The dissent accused the majority of trading “in tropes and hyperbole to portray the AR-15 as a menacing weapon with no other utility than the slaughtering of enemy combatants and innocents.”
“Not only is this picture untrue, but it also demonizes the millions of Americans who lawfully keep these weapons to defend themselves and their communities,” Richardson, a Donald Trump appointee, wrote.
