4th Circuit Says 'Assault Weapon' Ban Must Pass Strict Scrutiny

The ruling suggests Maryland's law will be overturned on Second Amendment grounds.



Yesterday a federal appeals court cast doubt on the constitutionality of Maryland's "assault weapon" ban, concluding that the law imposes a "substantial burden" on the exercise of the right to keep and bear arms and should therefore be subject to "strict scrutiny." The decision, by a three-judge panel of the U.S. Court of Appeals for the 4th Circuit, sends the case back to U.S. District Court in Baltimore for consideration under that highly demanding standard. Since at least two other appeals courts have upheld bans on "assault weapons," the ruling creates a circuit split that may lead the Supreme Court to step in and resolve the issue.

Maryland's Firearm Safety Act (FSA), passed after the 2012 massacre at Sandy Hook Elementary School in Newtown, Connecticut, bans possession, sale, or transfer of 60 specific rifle and shotgun models, along with "copies" of them, a term the statute does not define. The prohibited weapons include the highly popular AR-15 rifle "and all imitations" of it as well as semi-automatic versions of the AK-47. The upshot, writes Chief Judge William B. Traxler on behalf of himself and Judge G. Steven Agee, is that the law "bans law-abiding citizens, with the exception of retired law enforcement officers, from possessing the vast majority of semi-automatic rifles commonly kept by several million American citizens for defending their families and homes and other lawful purposes." The FSA also bans the sale of magazines that can hold more than 10 rounds.

The 4th Circuit finds that the FSA "implicates the core protection of the Second Amendment—'the right of law-abiding responsible citizens to use arms in defense of hearth and home.'" In light of the Supreme Court's precedents in this area, the court says, "the burden is substantial and strict scrutiny is the applicable standard of review." Under strict scrutiny, the government must show that a challenged regulation is "narrowly tailored" to achieve a "compelling governmental interest," a test that is all but impossible to pass. It is hard to imagine how a law as frivolous as an "assault weapon" ban could survive strict scrutiny.

Traxler notes that "the conduct being regulated by the FSA includes an individual's possession of a firearm in the home for self-defense"—the right at the center of District of Columbia v. Heller (2008) and McDonald v. City of Chicago (2010), cases in which the Supreme Court overturned gun bans on Second Amendment grounds. He also points out that "the banned semi-automatic rifles are in common use by law-abiding citizens," a criterion for determining which weapons are covered by the Second Amendment. "It is beyond dispute from the record before us…that law-abiding citizens commonly possess semi-automatic rifles such as the AR-15," Traxler writes. "Between 1990 and 2012, more than 8 million AR- and AK-platform semi-automatic rifles alone were manufactured in or imported into the United States."

It is also clear that "large-capacity magazines" (LCMs) are in common use for lawful purposes. "The record in this case shows unequivocally that LCMs are commonly kept by American citizens, as there are more than 75 million such magazines in circulation in the United States," Traxler writes. "In fact, these magazines are so common that they are standard."

The court rejects the argument that the banned firearms are "dangerous and unusual" weapons, which the Supreme Court has said are not covered by the Second Amendment. All firearms are dangerous, Traxler notes, but "assault weapons" are plainly not unusual. "Semi-automatic rifles and LCMs are commonly used for lawful purposes, and therefore come within the coverage of the Second Amendment," he concludes.

The court settles on strict scrutiny as the appropriate standard of review after noting that the FSA "implicates the 'core' of the Second Amendment" (the right of armed self-defense in the home) and "substantially burden[s] this fundamental right." Contrary to what the district court concluded, Traxler says, "the fact that handguns, bolt-action and other manually loaded long guns [and] a few semi-automatic rifles are still available for self-defense does not mitigate this burden." He notes that the Supreme Court "rejected essentially the same argument in Heller—that the District of Columbia's handgun ban did not unconstitutionally burden the right to self-defense because the law permitted the possession of long guns for home defense."

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  1. Appeals courts following SCOTUS precedent on the 2A? Naw, you're just teasing me.

    1. Do appeals courts usually defy SCOTUS precedent?

      1. Are we talking about the 9th Circuit or another?

  2. This certainly makes a sounder argument than that of Judge Easterbrook's decision [5th Circuit Court of Appeals] who upheld the Highland Park [IL] ban on assault weapons, arguing that mass shootings, while rare, are "highly salient events" and that while very very few people are actually killed by such "assault weapons" if a ban had the effect of making the public "feel" safer, then it provided a "substantial benefit" and should be upheld [any and all facts or reasoning be damned, its feelings that matter apparently].

    Now on the the USSC.

    1. Correction: that was the 7th Circuit Court of Appeals [not the 5th].

      1. It was also decided under intermediate scrutiny which is actually almost as loose a rational basis. See Michael M. v. Superior Court, 450 U.S. 464 (1981)

  3. If courts do the right thing and adopt the strict scrutiny test, almost no gun control measures short of banning cruise missiles and the sale of guns to convicted murderers will stand up in court. Pretty much every "common sense" gun control measure the Progs are always yapping about would not stand a chance if subjected to strict scrutiny.

    I think the ban on felons owning guns would stand. The ban on owning fully automatic weapons would stand, though it wouldn't if I were the judge. Bans on children or those deemed by a court to be incompetent would stand. Outside of those, not much else would.

    1. If only felons can be banned from owning guns, the progs will go full steam toward as many acts being felonies as possible. All other considerations will be secondary.

      1. Yeah, in places like NYC anyway, a parking ticket would become a felony.

        1. That have pretty much done that already.

      2. We're all already committing three a day. Seems like plenty.

      3. The solution would be to exempt felons from paying taxes until their full rights are restored.

    2. If you've done your time you should have all rights restored.

      1. I agree. But realistically there is no way the courts will, though they should.

      2. I also tend to agree. It seems to me that since a judge and/or jury has to decide on the appropriate punishment, then when a person's prison term is up, any other residual punishment must also have been spelled out ahead of time. E.g., 3 years in prison, plus 4 years probation during which time the following rights will be suspended: voting, interstate travel, gun ownership etc. Upon successful completion of probation, all rights shall be restored.

    3. There isn't a ban on owning fully automatic weapons. Which is why I'm pretty sure that the Hughes Amendment wouldn't stand to strict scrutiny, and I'm not sure that the NFA 1934 would stand either.

      1. There is not a ban, but there are so many restrictions on it, there might as well be a ban. Getting a FFL is a real pain in the ass and not something many people are willing to do.

        1. You don't have to get an FFL. You just have to fill out a Form 4 and get a one time tax stamp.

          1. Really? It is that easy? I was always under the impression it was virtually impossible to legally buy a fully automatic weapon.

            1. They're expensive as all fuck, since the total supply of legal fully automatic weapons was capped in 1986, and like any machine, they're wear items. But the legal situation isn't that terrible. $200 for the tax stamp, and sign off from your local LEO.

              1. Thanks. That is interesting to know.

                1. I mean, don't get me wrong. It's certainly not as easy as just going to the store and buying a non-NFA firearm. But there's definitely not any sort of "ban" on fully-automatic weapons, at the federal level, which is what I should think would matter the most if SCOTUS were to require strict scrutiny for 2A.

              2. Now, if you live in California, you're not getting that LEO sign-off unless you're Stembridge Gun Rentals in L. A., and certainly some states have individual bans on various NFA items, but I know quite a few people with fully automatic weapons, suppressors, short barrelled rifles and shotguns, and so forth.

              3. I mentioned this below, but you beat me to it! 🙂

          2. But I believe the background check for an automatic weapon is essentially the same as for getting an FFL.

            1. They're both done by the FBI, but the paperwork for a Form 4 is a lot shorter than becoming an FFL, and of course there's no business license or location requirement.

            2. In addition, the FOPA in 1986 prohibits the transfer or possession by any civilian of any "machine gun" manufactured after the bill is signed into law.

              1. Yes. The Hughes Amendment. But that still leaves all the machine guns which were on the registry before 1986.

        2. The standard is, bearing arms being a fundamental right, whether or not the law is narrowly tailored to achieve the government's stated interest, whether or not it will actually work, and whether or not it impermissibly burdens the right. The tax stamp along with the artificially inflated prices (due to the NFA) impermissibly burdens the right of the majority to keep and bear Class III arms.

          For that reason, it is a de facto ban, and should be struck down.

  4. The upshot... is that the law "bans law-abiding citizens, with the exception of retired law enforcement officers, from possessing the vast majority of semi-automatic rifles commonly kept by several million American citizens for defending their families and homes and other lawful purposes.

    The LEO exemption makes perfect sense. I mean, when was the last time a cop misused a firearm?

    1. I think the only one in the last few years was Dorner. All of the others were shining examples of heroism and calm under duress.

  5. And for the political angle, it shouldn't be lost how wildly popular "assault weapon" bans have made AR-15s. It used to be an enthusiast thing for ex-military, but now outfitting AR-15s has become like an all-American hobby specifically because of the original "assault weapon" ban.

    There must be hundreds of companies offering thousands of options for your AR-15. It's like how the 'build your own computer' enthusiast community used to be back in the late '90s, with overclockers arguing over which motherboard was better, which fans to use, etc.

    There are so many options for your AR-15, a lot of gun shops will tell you not to buy a whole one from S&W--because you're probably going to want to replace everything but the receiver and the barrel anyway. They come in pink! And why shouldn't they come in pink? Why should your mom's AR-15 look just like yours?


    1. Another object lesson in how "banning" something that people want, but that government determines that we are not fit to have, only makes the banned item more popular.

    2. Bad-ass. Yay Half-Life. 🙂

  6. So, will the guns be taxes or penalties?

  7. http://www.texasmonthly.com/th.....right-now/

    I have been pleased that the majority of the carry commentariat prioritize a respect for private property and were way ahead of chamber of commerce types in anticipating how these daily transactions would flesh out.

    Not that it much matters: 99% of my carry buddies always conceal for tactical, much less, social reasons, so we seldom irritate anyone regardless of their rights, policies, or signage.

    Disappointing, though: TM generalizes from this one incident; eg, everyone who carries is an "activist" (whatever the point of that characterization might be) and, according to the title, mad at WMT. But, I'm sure I'm safe to say, most of the carry crowd are mad at this guy for embarrassing "us." No one resents WMT one whit although some might choose to patronize more accommodating retailers.

  8. my only problem with this is the phrase "hearth and home". My right to self defense is not limited to my locality within my home I have that right wherever I am.

  9. my only problem with this is the phrase "hearth and home". My right to self defense is not limited to my locality within my home I have that right wherever I am.

    1. Hm the internet has an echo today

    2. Yes you do. And that is why everyone should have the right to carry, open or concealed. I have never understood the objection to open carry. in the past concealed carry was always considered a bad thing because if you were not willing to carry a weapon openly, it was assumed you were up to some sort of mischief. I agree with that. I would prefer people carry their weapons openly.

      1. He wore his gun outside his pants For all the honest world to feel - Townes Van Zandt

        Open carry is constitutional, but concealed seems better manners. Good manners might need its own website, but I'll still say here that I enjoy and prefer Victorian sensibilities, and open carry is kin to public nudity, celebrating flatulence, that sort of thing....just uncalled for and unnecessary.

        1. It is only akin to flatulence if you consider a gun to be some kind of vulgar thing. And I honeslty don't see how you can do that without having some kind of animistic view of guns. A gun is a tool, an object. Is carrying a hammer on your belt bad manners? Maybe carrying one into a place where everyone is dressed formally but not generally no. Guns are no different.

    3. From memory, I seem to recall some criticism of Heller saying that self defense is at the core of the Second Amendment. On the other hand, that always seemed to me as a very solid anchor to go after gun restrictions. My right to self defense applies where ever I am, not just in my own home. And in fact it becomes an argument for some sort of national CCW reciprocity. When I'm away from my locality, in unfamiliar territory, I am MORE likely to need to defend myself. Why is my carry permit not honored by other states ?

      1. If you read the Amendment as written, I think Heller got that wrong. The amendment gives its purpose in the opening clause. It is "A well regulated Militia, being necessary to the security of a free State". I think self defense is a right and certainly part of the reason why gun ownership is also a human right, but it is not the only reason and not the primary reason under the 2nd Amendment. The 2nd Amendment wants people to be armed and ready to show up in defense of their homes if necessary. If you think about the Amendment that way and that it is an individual right, it is meant to protect the ability to own military style weapons as much or more than it is intended to protecting the right to own any other weapon. If the point is to make sure we have a ready militia, it is pretty stupid to think it didn't protect the right to own a military rifle of the appropriate technology for today.

        1. If you think about the Amendment that way and that it is an individual right, it is meant to protect the ability to own military style weapons as much or more than it is intended to protecting the right to own any other weapon. If the point is to make sure we have a ready militia, it is pretty stupid to think it didn't protect the right to own a military rifle of the appropriate technology for today.

          This is pretty much why I think that the Hughes Amendment, GCA 1968, and NFA 1934 will fall to "strict scrutiny".

          1. I think you are right about that. Sadly, I doubt the courts will do that but they will be wrong not to.

            1. I just like to dream big. 😉

  10. After reading a few of these comments, I am disturbed by something quite wrong:

    Many of you think that sound reasoning and logical consistency are the basis for court decisions.

    Precisely why would you think that? What would make you think that the court does anything other than do whatever they want, damn the logic?

    Why in the world should we argue what the Supremes would rule if they used this logic when Obamacare wasn't struck down 3 separate times?

    They do what they like. No amount of reasoning to them will stop them. The only 2 ways to stop them is to reason with the people and either:

    A. Put public opinion type pressure on the court to do the right thing, or

    B. Put public force-of-arms type pressure on the court to do the right thing.

    1. The thing about the law is that it isn't in the grand scheme of things a particularly difficult or intellectually demanding discipline. Lawyers and especially judges like to think that it is, but it really isn't. The practice of law is demanding insofar as the deductive and emotional skills it takes to deal with clients and figure out the facts or prove those facts to a court. If you know the facts, however, the actual law is never particularly difficult or demanding.

      Appellate courts do not adjudicate facts. They have the facts handed to them and only adjudicate how the law should apply to them. In short, they only do the easy part of law. They pretend it is difficult and intellectually demanding because for them it can be. It is demanding because they are generally not adjudicating the law but instead using the law to rationalize whatever result they prefer.

      1. So, it's supposed to act more like a computer program, input to output, but it acts more like a spoiled 3 year-old?

        Then why discuss how the computer program should act? It has little to do with how the 3 year old does... I suppose it's a useful exercise and debate, but has little to do with what they will send their goons with guns to force upon us...

        1. It is not quite that definite but it is a lot easier and more predictable than they make it out to be. It only gets hard and convoluted when courts start trying to rationalize their preferred result.

    2. Fair enough.

      My sense of commentary here is that it is prioritized thus:
      1) what are libertarian principles and how they apply
      2) what is constitutional in the US
      3) fart jokes
      4) what is the practical way to do the most good in the US given the two-party mess
      5) what sort of thinking/behavior leads to personal actualization and contributes to the greater good

      Most of (1) is irrelevant. Most of (2) is misunderstood or happily trampled upon. You're in the (4/5) zone, which is depressing and sends us back to (3).

      1. Well, I'm not sure I'm even in part 5, I try to defend individual rights and don't really care about the greater good (though it happens to be serviced best by defending individual rights).

        Yes, the case is interesting, but even the "strict scrutiny" claim is unconstitutional. "Shall not be infringed" means at all, even a little bit. Therefore, though this decision might be slightly better than another ruling, it may lead to more stupid thinking that in the long run kills us all (hyperbole).

  11. Supreme Court is the final arbiter of what is lawful and constitutional - then you have believed a lie and a myth that Jefferson warned about..
    If you are one that believes the Supreme Court is the final arbiter of what is lawful and constitutional, then you have believed a lie and a myth that Jefferson warned about. The States still retain their rights to this day to defy the federal judiciary, which has become an oligarchy. We just need strong statesmen as governors and legislatures to make that stand! The people will get behind those that will take the stand, but we must first seek out those willing to put all they are on the line for the sake of freedom, not necessarily a political future.

    Freedom outpost

    1. "Perhaps even more disturbing is that the voters who feel strongest about overriding the federal courts ? Republicans and conservatives - are those who traditionally have been the most supportive of the Constitution and separation of powers," reports Rasmussen. "During the Obama years, however, these voters have become increasingly suspicious and even hostile toward the federal government."

      In writing to William Jarvis, Jefferson said, "You seem . . . to consider the judges as the ultimate arbiters of all constitutional questions; a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy."
      The germ of dissolution of our federal government is in the constitution of the federal Judiciary; an irresponsible body (for impeachment is scarcely a scare-crow) working like gravity by night and by day, gaining a little today and a little tomorrow, and advancing its noiseless step like a thief, over the field of jurisdiction, until all shall be usurped."

      Freedom outpost

  12. The panel ruled correctly, first on the standard of scrutiny, and second, by applying the "Miller Test" whereby the Court ruled that arms in common use that are suitable for militia duty, i.e. that insure the preservation or efficiency of militia forces, are those within the ambit of the Second Amendment guarantee. The Court further held that the Second Amendment must be interpreted and applied with that end in view (US v Miller, 1939).

    The Miller ruling left the NFA status unscathed, and that issue eventually may or may not be addressed.

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