December 22, 2021
By Mark Chesnut
In response to a recent ruling by the 4th Circuit Court of Appeals that Maryland’s “assault weapon” ban doesn’t violate the Second Amendment to the Constitution, the Firearms Policy Coalition and several other groups are asking the U.S. Supreme Court to overturn the decision.
In the petition to the high court concerning Bianchi v. Frosh, FPC, the Second Amendment Foundation (SAF) and the Citizens Committee for the Right to Keep and Bear Arms (CCRKBA) explained how lower courts have repeatedly ignored important precedents like the Supreme Court’s rulings in District of Columbia v. Heller and McDonald v. City of Chicago.
“While the lower federal courts are united in upholding these bans on common firearms—and in affirmatively rejecting the categorical analysis set forth by this Court in Heller and McDonald—they have been unable to agree on the reason why the bans are purportedly constitutional,” the petition stated. “The result has been a grab-bag of ad-hoc constitutional tests, varying from circuit to circuit. Four circuits have settled on a form of review that they call ‘intermediate scrutiny’—but that in practice is hard to distinguish from rational-basis review. The label ultimately matters little, since Heller rejected either form of scrutiny in Second Amendment cases.”
In its decision, the 4th Circuit Court held that common semi-automatic firearms like the AR-15, which Maryland has banned, were “like M-16s” and unprotected by the Second Amendment.
“The firearms banned by Maryland are clearly protected under any honest reading of the Second Amendment and the Court’s Heller and McDonald decisions,” Adam Kraut, FPC’s senior director of legal operations, said in a news alert. “For over a decade, lower courts have ignored the text of the Constitution, binding Supreme Court precedent, and the relevant history and tradition to improperly uphold bans on constitutionally protected common arms.
“However, this case presents the Court with an ideal vehicle to both address the scope of protected arms and constitutionally infirm analysis applied by these recalcitrant lower courts. Just as Federal District Court Judge Roger T. Benitez held in our Miller v. Bonta case, the Supreme Court should grant this petition for certiorari and make clear that these common arms are protected and cannot be banned by any government.”
The petition to the court also notes that the ruling completely ignores the common, widespread use of AR-style rifles by millions of law-abiding Americans for a wide variety of legal purposes.
“Like the handguns at issue in Heller and McDonald, these semi-automatic firearms are ‘in common use’ and ‘typically possessed by law-abiding citizens for lawful purposes,’” the petition stated. “They may be freely purchased and used in the vast majority of States, they are no more dangerous than any other semi-automatic firearm, and Americans own them by the millions for purposes such as home-defense, hunting, and target shooting.”
The petition also attacks the Fourth Circuit’s reliance on a “useful in military service” test.
“This ‘useful in military service’ test blatantly misreads Heller and is irreconcilable with the Second Amendment’s text,” the petition continued. “It completely divorces the Second
Amendment right from the militia-protecting purpose announced in the Amendment’s prefatory clause—in direct contradiction of Heller’s instructions.
The petition concluded with a call for the high court to “grant the writ to prevent the guide penned by the Fourth Circuit from leading the lower courts down a path that will eviscerate the protections intermediate scrutiny was designed to afford.
Freelance writer and editor Mark Chesnut is the owner/editorial director at Red Setter Communications LLC. An avid hunter, shooter and political observer, he has been covering Second Amendment issues and politics on a near-daily basis for the past 20 years.