Maryland’s ban of the gun most often used in mass shootings across the nation withstood a new constitutional challenge in the Supreme Court on Monday. However, there may be another test when the Justices meet in their next term.
The legislature in Annapolis outlawed any form of “assault weapon” or semi-automatic rifle, such as the AR-15 and AK-14. The law was passed in 2013 in the wake of the killing in 2012 of 20 students and six adults at the Sandy Hook elementary school in Connecticut; the gunman used that kind of weapon.
A federal appeals court last August, rejecting a Second Amendment challenge to the Maryland ban, ruled by a vote of 10-to-5 that such weapons are intended for military use and sale, transfer, ownership or use of them is not protected in any way by the Constitution.
Such a weapon can be taken away by authorities, and violation of the ban can result in a three-year prison if convicted.
The majority on the appeals court described such rifles as “the weapons of choice for mass killing and terrorism,” noting that they had been used “in every major terrorist attack on U.S. soil in the past decade.” It added that such weapons also are “uniquely dangerous to law enforcement.”
The Supreme Court simply denied review of that decision, without explanation. The Court has similarly refused to review other appeals on the issue. Justice Clarence Thomas, who filed the lone dissent on Monday, protested that the Court had “avoided deciding…for a full decade” whether AR-15s and AK-47s can be banned. He described them as “the most popular rifle in America.”
One of the other Justices, Brett M. Kavanaugh, did not dissent from the order denying review, but wrote in an opinion for himself saying that the Maryland ban “is questionable” under the Court’s prior rulings on the Second Amendment. He noted that “Americans today possess an estimated 20 to 30 million AR-15s” and that those guns “are legal in 41 of the 50 states,” thus indicating that they are in “common use” and thus qualify for Second Amendment protection.
Kavanaugh commented that lower courts across the nation are weighing the issue, so it will return to the Court. He said “this Court should and presumably will address the AR-15 issue soon, in the next term or two.”
It would take the votes of four of the nine Justices to agree to review a gun ban such as Maryland’s. Kavanaugh and Thomas almost certainly would vote to take on such a case, and likely would be joined at least by Justice Samuel A. Alito, Jr., who has voted in the past for a broad view of Second Amendment protection. A fourth Justice might be recruited, especially if the lower courts should divide on the Second Amendment question.
Both Kavanaugh and Thomas criticized the appeals court decision upholding the Maryland law, saying that it probably did not apply properly a three-year-old Supreme Court precedent in a New York case (New York State Rifle and Pistol Association v. Bruen), a decision which made it considerably easier for courts to protect gun rights under the Second Amendment.
Maryland’s ban has been under constitutional challenge since its passage 12 years ago, and has been involved in two previous trips to the Supreme Court without gaining review.
After the ban had been upheld initially by lower federal courts, the Supreme Court in 2022 ordered them to reconsider it, applying the Justices’ decision in the Bruen case from New York.
The law was than upheld again by a federal trial judge in Baltimore, and the challengers tried unsuccessfully a new appeal last year, asking the Justices to rule without waiting for the appeals court to reconsider. After the appeals court once more upheld the ban, a new appeal went to the Court. That was the one denied Monday.
The new appeal was filed by a Baltimore man, David Snope, along with three organizations: the Firearms Policy Council, Inc., the Second Amendment Foundation and the Citizens Committee for the Right to Keep and Bear Arms.
The Monday order leaving the ban intact was one of two orders by the Court refusing to review Second Amendment challenges. The Court also turned down a Second Amendment challenge to a 2022 Rhode Island law banning possession of an ammunition-feeding device holding more than ten bullets.
That law not only outlawed the future purchase or possession of such devices, but also ordered the state to seize them without paying anything for them.
The Court rejected the case in a brief order, with no explanation. Three members of the Court, Justices Alito, Thomas and Neil M. Gorsuch, noted – without further comment – that they would have granted review.
