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4th Circuit: Assault Rifles Aren’t Protected by the 2nd Amendment

March 10, 2017

On February 22, 2017, the Fourth Circuit Court of Appeals upheld Maryland’s 2013 Firearms Safety Act which bans assault rifles and detachable large-capacity magazines. The Appeals Court declared that, “We are convinced that the banned assault weapons and large-capacity magazines are among those arms that are “like” “M-16 rifles” — “weapons that are most useful in military service.” By doing so the court has successfully evaded the standards set out in a different case, District of Columbia v. Heller, which established a precedent on this topic in 2008. By claiming that “assault rifles” – a term itself dubious in accuracy – are “like military” weapons and ignoring Heller’s common use standard, the court has removed them from the protected class of guns established in Heller.

Conflicting Opinions

  1. A dissenting opinion, written by Judge Traxler and joined by Judges Niemeyer, Shedd, and Agee, laid out their concerns that the court has blurred the line between automatic weapons and semi-automatic weapons. Specifically, that the majority ruled that the rate of fire makes them “nearly identical.” Judge Traxler concludes, “The majority’s assertion might surprise the United States Army”, who have found the M16-series rifles in semi-automatic mode at 45 to 65 rounds per minute as opposed to the estimated 150 to 200 rounds while in automatic mode.
  2.  Traxler and the other dissenting judges also found that the court’s creation of a “most useful in military service” test ignores the “common use” test created by the United States Supreme Court in Heller. The dissenting opinion states, “the Second Amendment does not apply if a court deems a weapon “most useful” in combat operations. And in the case before us today, the majority concludes that the Second Amendment does not apply at all because semiautomatic rifles, in the military opinion of the majority, are more useful as military weapons than as weapons for individual self-defense, hunting and target or sport shooting.” It is concerning that the judges would feel qualified to make such a determination, especially in light of the fact that Supreme Court Justice Alito in Caetano v. Massachusetts, said that “even a stun gun capable of only non-lethal force is suitable for military use.”

What’s Next?

The upheld law was passed in Maryland, but what does this mean for other states in the Fourth Circuit, including Virginia, West Virginia, and the Carolinas?

These states now have a green light to pass similar laws banning assault rifles knowing they will be considered constitutional by the 4th Circuit. The states won’t necessarily implement such laws, but if enough support were generated in the state legislatures such laws could be passed. The US Supreme Court could still step in and overturn this ruling; however, they have not taken any Second Amendment cases recently and have been criticized by both Justices Thomas and Scalia for doing so.