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This test could redefine what weapons are protected by the Second Amendment

A federal appeals court upheld Maryland’s ban on popular AR-15-style assault weapons and high-capacity magazines last week, delivering a significant win to gun-control advocates who argue that the Second Amendment does not apply to military-style weapons.

Maryland’s ban, enacted in 2013 soon after the Sandy Hook Elementary School massacre, was allowed to stand in a 10-4 decision by the 4th Circuit Court of Appeals in Richmond, Virginia, that ruled the Second Amendment does not protect what the judges called “exceptionally lethal weapons of war.”


While the ruling is the fifth to uphold a state ban on assault weapons, according to The Trace, the Virginia federal appeals court is the highest yet to affirm a standard for classifying assault weapons, one gun advocates say will significantly narrow the scope of the Second Amendment. And one of the lawyers who brought the case now has set his sights on the Supreme Court.

“It is absurd to hold that the most popular rifle in America is not a protected ‘arm’ under the Second Amendment,” Jennifer Baker, director of public affairs for the National Rifle Association, said in a statement. “The Second Amendment protects arms that are ‘in common use at the time for lawful purposes like self-defense.’”

Like all constitutional rights, the Second Amendment is limited. For instance, civilians can’t buy automatic weapons, like machine guns. But now seven states and the District of Columbia have enacted laws banning military-style automatic weapons like the AR-15, a version of which was used in the Sandy Hook massacre — which took the lives of 26 people, mostly children — and the shooting at the Pulse nightclub in Florida, where 49 were killed and 53 wounded.

In the past, circuit courts have relied on how common a weapon is when determining if it’s covered by the Second Amendment, according to Hannah Shearer, an attorney with the Law Center to Prevent Gun Violence. But with the 4th Circuit ruling, the judges gave new credence to a second standard: if a weapon could cause military-level destruction.


The AR-15, the Maryland ruling majority opinion reads, is “simply the semiautomatic version of the M16 rifle used by our military and around the world.” That deadly ancestry, according to the opinion, means that the Supreme Court excludes AR-15-type rifles and firearms like it from the Second Amendment.

Those AR-15-style rifles are some of the most popular firearms among U.S. consumers today.

“[Under the ruling,] the Second Amendment doesn’t even apply to the most common and popular semiautomatic rifles being sold today,” said Jay Porter, one of the attorneys representing the plaintiffs in the Maryland case. “It’s absurd.”

But some gun control advocates say the “common use” standard alone is insufficient.

“It would suggest that if the gun industry floods the market with an extremely dangerous destructive weapon, if they can flood the market quick enough before legislatures begin banning this product, then there’s nothing a legislature can do about it because all of a [sudden] those products are ‘in common use,’” said attorney Jon Lowy, director of the Brady Center to Fight Gun Violence Legal Action Project.

The “common use” test comes out of a 2008 Supreme Court decision, District of Columbia v Heller. If a gun is in common use for law-abiding purposes, the test goes, then it’s protected by the Second Amendment. But in its Heller ruling, the Supreme Court introduced a second caveat: “Weapons that are most useful in military service — M-16 rifles and the like — may be banned.”


Besides outlawing the ownership of a class of assault weapons — including semiautomatic rifles with detachable magazines and pistol grips — the Maryland law also prohibits the sale and transfer of large-capacity magazines, which typically hold more than 10 rounds.

Gun lobby groups, however, have long argued that semiautomatic weapons are constitutionally protected.

But in the majority opinion, the federal appeals court judges reason that the difference between automatic and semiautomatic fire is only a matter of seconds between rounds. Instead, they emphasized high-capacity magazines and assault weapons’ ability to turn clubs and school into battlegrounds and their use in massacres from San Bernardino, California, to the Pulse nightclub in Orlando, Florida.

While only 11 percent of mass shootings between January 2009 and July 2015 involved high-capacity magazines — or assault weapons equipped with them — those shootings tended to be much deadlier than those committed with other firearms, according to the gun control group Everytown for Gun Safety.

“This opinion rested its reasoning on the facts of what’s happening when people who shouldn’t have them get ahold of weapons that were designed for military use and inflict horror and terror in public spaces,” said Shearer. “So in that respect, it provides an original blueprint for looking at those social problems and coming up with solutions to gun violence using commonsense gun laws.”


And that focus on military-level lethality, instead of commonality, is what lawyers across the aisle say might be the ruling’s greatest, or most misguided, legacy. Ultimately though, it’s anyone’s guess how many courts will follow the 4th Circuit’s lead. Or if they’ll get the chance.

In the past, lawyers who represented the plaintiffs in state assault weapon cases didn’t always send rulings to the Supreme Court for review, but Porter said he will. Basing an entire ruling on “one half of a sentence” in a Supreme Court case, he said, is not enough to restrict a constitutional right.

“The real point is that no other court has done anything like this. Not even close,” he said. “[This is] the type of case that the Supreme Court should take, must take — maybe will take.”

CORRECTION (March 2, 9:53 a.m.): An earlier version of this article misspelled the name of the director of the Brady Center to Fight Gun Violence Legal Action Project. He is Jon Lowy, not Jon Lowry.

CORRECTION (March 2, 2:07 p.m.): An earlier version of this article misstated the name of the organization Hannah Shearer works for. It is the Law Center to Prevent Gun Violence, not the the Law Center for Gun Violence Prevention.