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Assault Weapons Aren't Protected by the Second Amendment, 4th Cir. Holds

By Casey C. Sullivan, Esq. on February 22, 2017 | Last updated on March 21, 2019

An en banc Fourth Circuit upheld Maryland's 2013 Firearm Safety Act on Tuesday. That law, passed in the wake of the Sandy Hook shooting that left 20 first graders dead, banned assault weapons and high capacity magazines -- the very type of weapons common in mass shootings.

But the Fourth didn't just rule that the law withstood scrutiny under the Second Amendment. It ruled that the targeted weapons are not protected by the Second Amendment at all.

Neither Strict Nor Intermediate Scrutiny Apply

Maryland's FSA makes it illegal to possess certain assault weapons and bans the purchase, sale, or manufacture of magazines greater than 10 rounds. The law was quickly challenged on the grounds, among others, that it violated the Second Amendment's right to keep and bear arms.

Earlier decisions in the dispute had revolved around what standard of review courts should use to evaluate those Second Amendment claims. The district court applied intermediate scrutiny and ruled that the assault weapon ban withstood such review. A three-judge panel on the Fourth reversed. Assault weapons and large-capacity magazines were "commonly used for lawful purposes," the panel held, and "therefore come within the coverage of the Second Amendment." Determining that the FCA touched on a "fundamental right," the panel ruled that strict scrutiny should apply.

Rehearing the case en banc, the full Fourth came to a diametrically opposite conclusion. There was no Second Amendment protection for assault weapons, the court found.

"M-16-Like" Arms Excluded

The characterization of the arms impacted by the FSA was essential to the case's outcome. The state had advanced uncontroverted evidence that the firearms affected by the FSA were "exceptionally lethal weapons of war," the Fourth noted. The AR-15 was developed for the U.S. Army, where it's known as an M16. The AK-47 was its Soviet equivalent. Civilian versions of both are semiautomatic, rather than fully automatic, "but otherwise retain the military features and capabilities" of their military cousins.

Further, weapons like these, often with large-capacity magazines, are disproportionally used in mass shootings and in the murder of police officers. The plaintiffs "have not produced evidence actually demonstrating that the banned assault weapons are less dangerous than or materially distinguishable from military arms," the court explained.

The weapons' similarity to military arms spelled the end of the plaintiff's Second Amendment claims. In D.C. v. Heller, the 2008 Supreme Court recognized an individual right to "use arms in defense of hearth and home." But that right, the Fourth noted, was limited. It, in the Supreme Court's words, "extends only to certain types of weapons."

That does not include "weapons that are most useful for military service," the Heller Court explained, pointing directly to "M-16 rifles and the like."

Because the banned weapons are military-style arms, the Fourth concluded, "they are among those arms that the Second Amendment does not shield." Heller's comments about M-16-like rifles were dispositive.

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