Appeals court weighs Maryland assault weapons ban under new legal standard

Salesman Ryan Martinez clears the chamber of an AR-15 at the "Ready Gunner" gun store In Provo, Utah, U.S. in Provo, Utah, U.S., June 21, 2016. REUTERS/George Frey
  • Court had upheld law before U.S. Supreme Court shifted standard for gun control
  • Judges focus on whether banned rifles are in common use

(Reuters) - A federal appeals court on Tuesday heard arguments over whether to strike down a Maryland law banning so-called assault weapons, such as the AR-15 semiautomatic rifle, in light of a recent U.S. Supreme Court ruling broadly expanding gun rights.

Peter Patterson of Cooper & Kirk, a lawyer for residents challenging the ban, said "law-abiding citizens have a right to own firearms that are in common use for lawful purposes" under the Supreme Court's June ruling in New York State Rifle & Pistol Association Inc v. Bruen, which found the 2nd Amendment of the U.S. Constitution protects an individual's right to carry a handgun in public for self-defense.

The ruling clarified how courts must now assess whether state regulations are valid, requiring them to be comparable with restrictions traditionally adopted throughout U.S. history.

Maryland Assistant Attorney General Robert Scott said the Bruen ruling had not overturned the 4th Circuit's own 2017 ruling upholding the Maryland law against a different challenge on the grounds that the banned weapons were "similar to M-16s and other military-style weapons" not suited to civilian use.

Maryland enacted its ban after a shooter used such a weapon in the 2012 mass killing of 20 children and six adults at Sandy Hook Elementary School in Newtown, Connecticut.

The plaintiffs in the current case sued in 2020 alleging that the Maryland law violated the 2nd Amendment, even though the Supreme Court had previously let the 2017 4th Circuit ruling upholding the law stand. In 2021, the 4th Circuit upheld the ban a second time.

When Circuit Judge Stephanie Thacker on Tuesday asked Patterson why the case was not "frivolous" at the time it was filed, he said it was "a good faith effort to change the law" by getting the issue in front of the Supreme Court once again.

That attempt may pay off. Days after issuing its ruling in Bruen, the Supreme Court ordered the 4th Circuit to reconsider its 2021 ruling upholding the ban in light of its Bruen decision.

Much of Tuesday's argument focused on whether showing that a gun was commonly used by law-abiding citizens was enough to satisfy the test in Bruen.

"To me the test basically is in common use," Circuit Judge Paul Niemeyer said. Scott said the challengers had not presented evidence that the guns were commonly being used lawfully, for self defense.

"All they're doing is saying a lot of people own them," he said. "That doesn't meet the test."

Thacker also pressed Patterson on whether the banned rifles were in fact used for lawful purposes, noting that they had also been used in mass shootings. Patterson said research showed that the weapons of choice for criminal use were not rifles, but handguns.

Circuit Judge Julius Richardson asked Patterson why the court should not send the case back to the District of Maryland, where it was filed, for discovery to resolve the issue. But Patterson said the court should strike the law down immediately.

"This is a fundamental constitutional right that's at stake and every day it's being infringed is irreparable harm," he said.

The case is Bianchi v. Frosh, 4th U.S. Circuit Court of Appeals, No. 21-1255.

For plaintiffs: Peter Patterson of Cooper & Kirk

For Maryland: Assistant Attorney General Robert Scott

Read more:

U.S. Supreme Court expands gun rights, strikes down New York law

U.S. Supreme Court throws out rulings upholding gun restrictions

Our Standards: The Thomson Reuters Trust Principles.

Thomson Reuters

Brendan Pierson reports on product liability litigation and on all areas of health care law. He can be reached at brendan.pierson@thomsonreuters.com.