By Michael Dresser
A federal appeals court dealt a potentially serious blow to Maryland's landmark 2013 gun control law and similar measures across the country, ruling Tuesday that a lower court was wrong when it upheld the state's ban on assault rifles.
In a 2-1 decision applauded by gun rights advocates, a three-judge panel of the U.S. Court of Appeals for the 4th Circuit concluded that the semiautomatic weapons and high-capacity magazines banned by Maryland's Firearm Safety Act "are in common use by law-abiding citizens." As a result, they don't fall under the exception to the right to bear arms that applies to "unusual" weapons such as machine guns and hand grenades, the court said.
Maryland Attorney General Brian E. Frosh said Thursday that the decision "conflicts sharply with rulings of other federal appellate courts." Frosh said he would appeal -- either to the full 15-member 4th Circuit or to the U.S. Supreme Court.
The National Rifle Association issued a statement hailing the ruling.
Chris W. Cox, executive director of the group's Institute for Legislative Action, called the decision "an important victory for the Second Amendment."
"Maryland's ban on commonly owned firearms and magazines clearly violates our fundamental, individual right to keep and bear arms for self-defense. The highest level of judicial scrutiny should apply when governments try to restrict our Second Amendment freedoms," Cox said in a statement.
Matthew A. Clark, a spokesman for Gov. Larry Hogan, said the governor's office was studying the ruling but would have no comment.
The judges sent the challenge to Maryland's gun law back to the U.S. District Court with instructions to apply the difficult constitutional test of "strict scrutiny" when considering whether the ban violated the Second Amendment. Previously, U.S. District Judge Catherine C. Blake had found the ban constitutional under the less-stringent test of "intermediate scrutiny."
If the appeals court's decision reaches the Supreme Court, the ruling could have national importance because it would give justices the opportunity to settle the question of whether states can ban assault weapons and magazines that hold a large number of bullets.
Mark Graber, a law professor at the University of Maryland, said the ruling poses a serious challenge to the law -- a signature achievement of former Gov. Martin O'Malley and of Frosh, a state senator when it was passed.
"Strict scrutiny is just that. It is stricter than the ordinary form of scrutiny," he said. Almost all challenged laws fail the test, he said.
Graber said the decision is one of national importance.
"It almost looks like what the court really wants is for this to go up to the Supreme Court," he said.
Adam Winkler, a law professor at UCLA, gave the law a slightly better chance in the lower court than Graber did.
"About three in four laws subjected to this standard of review are struck down," he said. But Winkler added that gun laws have a better chance of ending up in the 25 percent that survive because they're based on a justification of public safety.
Winkler said the decision is the first in which a federal appeals court has questioned bans on "military-style" rifles and high-capacity magazines.
"These laws are at the very heart of the gun control movement's agenda today," he said.
Chief Judge William B. Traxler Jr., an appointee of President Bill Clinton, and Circuit Judge G. Steven Agee, who was named by President George W. Bush, agreed on the main part of the ruling affecting the assault gun ban. Judge Robert B. King, a Clinton appointee, dissented.
Winkler, author of "Gunfight: The Battle Over the Right to Bear Arms in America," said party affiliations are a poor predictor of how judges will vote in gun control cases.
"We've seen both Republican judges and Democratic judges have voted to uphold gun control laws more or less consistently," he said.
Traxler noted that the ban applied to keeping assault weapons in one's home.
"Any prohibition or restriction imposed by the government on the exercise of this right in the home clearly implicates conduct protected by the Second Amendment," the judge wrote.
The 4th Circuit panel said it recognizes that other courts have reached opposite conclusions about similar bans, but said that "we ultimately find these decisions unconvincing."
In his dissent, King said no Supreme Court precedent compels the court to insist on a strict-scrutiny standard. He disagreed with the conclusion that the semiautomatics covered by the ban are standard for home defense.
"Let's be real: The assault weapons banned by Maryland's [law] are exceptionally lethal weapons of war," King wrote.
The clash among federal circuits sets up several possibilities. The state could let the case go back to the District Court and hope to win there under the stricter standard. It could seek Supreme Court review or appeal to the full 4th Circuit, which once had a reputation as the nation's most conservative appeals court but has become more centrist under President Barack Obama.
The full circuit court could decide to hear the case on its own, said Carl Tobias, a law professor at the University of Richmond.
"This would be a very good case for that," Tobias said. If it goes to the full court, he said, "I think it would be close."
The ruling leaves the ban on assault rifles in place pending a decision by the District Court. UCLA's Winkler said it could take a long time before the case reaches the Supreme Court -- if it ever does.
"It's not even a slam dunk that the Supreme Court would take the case,' Winkler said.
Maryland advocates on both sides of the issue found something to cheer about.
Dan Blasberg, president of the gun rights group Maryland Shall Issue, said the ruling "turned my day upside-down but in a good way." He said the case, in which his group was a plaintiff, could force the high court to consider the issue.
"This certainly could be a vehicle to get there," he said. "Our legal counsel is fairly confident they could present a good enough case to prevail."
But Vincent DeMarco, president of Marylanders Against Gun Violence and one of the chief lobbyists for the 2013 law, claimed victory on another point.
"The gun lobby never even challenged the most important part of the law, which is the requirement that handgun purchasers be licensed and fingerprinted," he said. "That is the part of the law that will save the most lives."
DeMarco said he has confidence that Frosh will successfully defend the assault rifle ban.
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