The U.S. Court of Appeals for the Fourth Circuit upheld Maryland’s ban on so-called assault weapons earlier this month, likely setting the stage for the next major Second Amendment showdown at the Supreme Court.
The case, Bianchi v. Brown, features Maryland residents who challenge the constitutionality of a 2013 state law that generally prohibits them from buying or possessing any firearm deemed an “assault weapon.”
The statute defines that term to include hundreds of specific models of semiautomatic rifles, as well as any other semiautomatic rifle that either (1) has a fixed magazine capable of holding more than ten rounds, (2) has an overall length shorter than twenty-nine inches, or (3) has both a detachable magazine and at least two of the following three features: a folding stock, flash suppressor, or grenade or flare launcher.
While semiautomatic rifles aren’t outright prohibited, Maryland residents are required to buy heavily modified “featureless” versions of those guns. The plaintiffs argue that this prohibition on owning virtually all of the most popular semiautomatic rifles in the nation violates the Second Amendment.
The Supreme Court hasn’t definitively addressed the question of whether the Second Amendment protects the possession of semiautomatic rifles, but to say that its overall Second Amendment jurisprudence favors the plaintiffs’ argument is an understatement, to say the least.
First, in District of Columbia v. Heller, the Supreme Court in 2008 struck down the District of Columbia’s total ban on the possession of handguns and explained that the Second Amendment’s protections extend “prima facie to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding.”
The right is not unlimited, and the Supreme Court noted a historical tradition of “prohibiting the carrying of ‘dangerous and unusual weapons.’” It emphasized, however, that handguns are “commonly possessed by law-abiding citizens for lawful purposes,” and constitute a “class of ‘arms’ that is overwhelmingly chosen American society” for exercising their natural right of self-defense.
Most recently, in New York State Rifle & Pistol Ass’n v. Bruen, the Supreme Court explained that judicial analyses of Second Amendment challenges must be based on text, history, and tradition, and not on any interest-balancing tests that allow courts to determine whether the government has a sufficiently compelling reason for the regulation.
Bruen didn’t specifically delve into what types of arms are protected, but the case is nonetheless instructive about how courts must go about discerning the answer to that question: When the law regulates conduct that is protected by the plain language of the amendment, the government must demonstrate that the law is consistent with the nation’s historical tradition of firearms regulation.
Under the Bruen test, the government doesn’t have to show a historical doppelganger for its modern law, but at the very least, it needs to provide evidence of historical laws that were relevantly similarly both in how they burden the right to keep and bear arms, and in the reason for why the laws burden that right. Additionally, the historical tradition must be formed by more than a handful of late-in-time historical outliers.
In short, under the Supreme Court’s jurisprudence, the government would have to show some longstanding national tradition of not only banning the civilian possession of semiautomatic rifles like the AR-15, but banning them because they are a type of weapon that is so inherently dangerous and unusual that it’s not commonly possessed by law-abiding citizens for lawful purposes. It can’t do so.
First, semiautomatic rifles like the AR-15 are hardly a new invention for which we must draw nuanced analogies to historical categories of small arms.
The first successful semiautomatic rifle design was produced in the 1880s, and subsequent models achieved widespread commercial success by the earliest days of 20th century. Meanwhile, the features that typically distinguish “assault-style” semiautomatic rifles from “non-assault” rifles—such as pistol grips, collapsing stocks, and barrel shrouds—are only slightly more recent developments that, importantly, have no bearing on the weapon’s lethality, functionality, or concealment.
Yet, complete bans on their civilian possession are a strikingly recent phenomenon. The Supreme Court admitted as much nearly thirty years ago in Staples v. United States, when it referred to a semiautomatic AR-15 rifle among the categories of weapons that “traditionally have been widely accepted as lawful possession,” unlike automatic machineguns, artillery pieces, and hand grenades.
While machine guns have been heavily regulated since the early 20th century, the first attempt to regulate semiautomatic rifles didn’t come until California’s passage of a comparatively narrow law in 1989.
Yes, the federal government passed what it called “an assault weapons ban” in 1994. But the Supreme Court never ruled on its constitutionality. And while that law imposed a 10-year ban on the civilian purchase of certain semiautomatic weapons, it didn’t prohibit their possession by the millions of civilians who already owned them.
Moreover, Congress allowed that statute to “sunset” in 2004, in significant part because the government’s official report concluded that these weapons were rarely used in crime even before the law was passed, and reinstating it therefore have little impact on violent crimes rates.
Even today, only 10 states and the District and Columbia regulate the sale or possession of semiautomatic “assault” weapons, and the majority of those regulations were enacted within the last 15 years. They are not just historical outliers, but modern outliers, as well.
Second, semiautomatic rifles like the AR-15 are clearly commonly possessed by law-abiding citizens for lawful purposes. Even the Supreme Court’s notoriously anti-gun justices admitted in their dissent in Garland v. Cargill that semiautomatic rifles are “commonly available” to ordinary civilians.
Finally, even if one believes that, somehow, firearms that are both commonly possessed for lawful purposes and that historically haven’t been subjected to significant regulation can nonetheless qualify as uniquely dangerous and unusual weapons under the Bruen test, the fact remains that the semiautomatic “assault-style” rifles banned under the Maryland law are functionally the same as the featureless semiautomatic rifles it permits.
Again, nothing about the defining features of “assault-style” firearms impacts any measure of “dangerousness,” such as rate of fire, muzzle velocity, or the caliber of the bullet fired.
Despite all of this, a majority of the 4th Circuit determined that Maryland’s prohibition was perfectly constitutional. Unsurprisingly, it was only able to come to this conclusion by making a mockery of Supreme Court precedent.
The 4th Circuit upheld the statute by declaring semiautomatic rifles “military-style weapons designed for sustained combat operations that are ill-suited and disproportionate to the need for self-defense.” As such, Maryland’s ban on their possession “fits comfortably within our nation’s tradition of firearms regulation,” which the court framed as “regulating excessively dangerous weapons once their incompatibility with a lawful and safe society becomes apparent.”
The opinion is replete with problems that make it ripe for review by the Supreme Court. Some of the 4th Circuit’s rationale is just downright nonsensical, such as its argument that the AR-15 was “designed for combat” in the first place.
In reality, the AR-15 was quite literally designed as the civilian model of its select-fire military counterpart, and has only ever been sold to civilians and law enforcement officers for non-military use.
The most significant of these problems, however, is foundational. In essence, the Fourth Circuit manipulated the Bruen test to “find” a historical tradition of engaging in the very sort of interest-balancing that Heller, McDonald, and Bruen deemed inappropriate, for the clear purpose of circumventing the Supreme Court’s proscription of interest-balancing tests.
The 4th Circuit has made a mockery of the Bruen test and effectively dared the Supreme Court to do something about it. If the court is serious about its vindicating Second Amendment jurisprudence, it should grant certiorari and finally (and definitively) settle the “assault weapon” question.