Gun activists just had a very good day in court.
On Thursday, a divided panel of the United States Court of Appeals for the Fourth Circuit struck down Maryland’s ban on assault rifles and high-capacity magazines. In so doing, they potentially put this case on the fast track to the Supreme Court. They also risk setting off a literal arms race where gun makers race to sell as many exotic kinds of weapons as possible in order to expand the scope of the Second Amendment.
The case primarily turns on a few lines in the Supreme Court’s 2008 decision in District of Columbia v. Heller, its first decision holding that the Second Amendment protects an individual right to bear arms. Though Heller expanded the scope of that amendment significantly — effectively creating a whole new area of constitutional law more than two centuries after the Bill of Rights was ratified — it also held that the Constitution does not protect “a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.” The Court endorsed “the historical tradition of prohibiting the carrying of ‘dangerous and unusual weapons.’” And it also suggested that “weapons that are most useful in military service—M-16 rifles and the like—may be banned.”
Chief Judge William Traxler’s majority opinion in Kolbe v. Hogan hinges on his assertion that the weapons banned by Maryland’s law are not “unusual,” and therefore are shielded by Heller. “The list of prohibited weapons includes the semi-automatic rifle models most popular by far among American citizens,” Traxler writes, “the AR-15 ‘and all imitations’ and the semi-automatic AK-47 ‘in all forms.’” According to Traxler, “more than 8 million AR- and AK-platform semi automatic rifles alone were manufactured in or imported into the United States” between 1990 and 2012.
That may be true. Yet, as Judge Robert King points out in dissent, it’s also not the entire story. “The banned assault rifles and shotguns constitute no more than 3% of the civilian gun stock,” King writes, “and ownership of such weapons is concentrated in less than 1% of the U.S. population.”
Such guns, moreover, are very similar to military-grade weapons that Heller suggests may be banned. “The AR-15, functions almost identically to the military’s fully automatic M16,” King explains. “The sole difference between the M16 and the AR-15 is that the M16 is capable of automatic fire while the AR-15 is semiautomatic.” Yet, “that difference is slight, in that automatic firing of all the ammunition in a thirty-round magazine takes two seconds, whereas a semiautomatic rifle can empty the same magazine in about five seconds. Moreover, soldiers and police officers are often advised to choose semiautomatic fire, because it is more accurate and lethal than automatic fire in many combat and law enforcement situations.”
Judge King adds that “Criminals armed with the banned assault weapons possess a ‘military-style advantage’ in firefights with law enforcement, as such weapons ‘allow criminals to effectively engage law enforcement officers from great distances (far beyond distances usually involved in civilian self-defense scenarios),’ ‘are more effective than handguns against soft body armor,’ and ‘offer the capacity to fire dozens of highly lethal rounds without having to change magazines.’”
The fact that an appeals court panel backed Traxler’s approach and not King’s is especially important because it creates what is known as a “circuit split” within the federal judiciary. As Traxler acknowledges, at least two other federal appeals court have upheld similar bans on assault rifles, and the Supreme Court is much more likely to take a case when there is a split among the lower appeals courts that needs to be resolved.
Last December, moreover, the Supreme Court declined to hear a similar case over the dissent of Justices Antonin Scalia and Clarence Thomas. Now that a circuit split has opened up, these two justices will bring significantly more ammunition to the table when they try to convince their colleagues to take up this issue.
And should Scalia and Thomas’ view ultimately prevail in the Supreme Court, that could seriously undermine the government’s ability to protect the public from especially dangerous weapons. As ThinkProgress previously explained,
Suppose, for example, that an unusually conservative Congress is elected in 2016, and that Congress repeals the ban on machine guns. All that would be necessary under Thomas’s rule to render such a ban permanently unconstitutional would be for a large number of gun owners to obtain machine guns and not use them in the commission of a crime. The NRA and gun manufacturers, moreover, would have an obvious interest in ensuring that these guns become commonly held as quickly as possible — as they would be in a literal arms race to distribute the guns widely before Congress can reinstate the ban.
It’s worth noting that the Fourth Circuit is a left-leaning court — two-thirds of its active members were appointed by Democratic presidents (although one of the Democratic appointees is Traxler). So it is possible that the full appeals court will decide to take this case up and eliminate the circuit split in the process. Nevertheless, the Roberts Court has taken political charged cases in the past, even after a circuit split ceased to be. So Judge Traxler’s views in Kolbe could easily be imposed on the entire nation by a majority of the Supreme Court.