“‘Where Does It Stop?’ Court Questions Effort to Undo Maryland Gun Laws. “

The Washington Post / Rachel Weiner

15:41 JST, March 24, 2024

Judges on a federal appeals court in Richmond pushed back this week against efforts to undo gun regulations in Maryland and beyond, expressing incredulity from the bench at the idea that any firearm in common use cannot be legally banned no matter how dangerous.

“Have you ever fired an M16?” Judge J. Harvie Wilkinson III asked an advocate for gun rights groups, who responded that he had not.

“I have,” said Wilkinson, a 1960s Army veteran appointed to the U.S. Court of Appeals for the 4th Circuit by President Ronald Reagan. The judge recalled firing an M16 at targets of human silhouettes. “When the bullets stuck the human being, it splintered them into all sorts of different pieces,” he said during marathon oral arguments Wednesday and Thursday in three cases related to state gun laws.

“There was very little left of the human being,” he recalled. “And that was a much earlier model of the M16. It’s since been perfected and perfected and been turned into a more lethal weapon than the one I used.”

The M16, capable of automatic and semiautomatic fire, was the U.S. military’s standard-issue rifle for decades. The civilian version, the AR-15, is hugely popular among gun enthusiasts nationwide. It is capable of rapid semiautomatic fire and has been used in numerous mass shootings over the years.

“No matter how lethal the weapon, it’s all past the ability of the state to regulate?” Wilkinson asked skeptically. “What’s the limiting principle of all this? Where does it stop?”

Courts across the country are wrestling with the same question two years after the U.S. Supreme Court ruled that gun regulations have to comport with “history and tradition” and that only “dangerous and unusual” weapons can be restricted. One of the cases argued in Richmond involves Maryland’s assault weapons ban, which is among a dozen laws of its type facing challenges across the country.

The 4th Circuit is one of the most liberal appellate courts in the nation; Alan Gottlieb of the Second Amendment Foundation, one of the pro-gun groups behind the challenge, said “our goal is to get this case before the Supreme Court where we will get our victory.”

Shira Lauren Feldman, director of constitutional litigation for the gun-control group Brady United, said it was “inevitable that the Supreme Court will eventually take up this question” once more appellate courts have weighed in. But Feldman said Wilkinson’s questions show “there is a whole school of conservative judges who do not think that these challenges make a whole lot of sense.” In Illinois, she noted, another Reagan appointee recently voted to uphold that state’s assault weapons ban.

Peter A. Patterson, representing gun rights groups, told Wilkinson that the semiautomatic AR-15 banned by Maryland is “relatively underpowered.” But he said that if fully automatic weapons were commonly owned by law-abiding people, they could not be legally banned either.

“Under your theory, if Congress had never gotten around to banning fully automatic rifles and machine guns and they had become popular in common use … a state could not ban” them, said Chief Judge Albert Diaz, an appointee of President Barack Obama. “What about a bazooka used for recreational purposes? A tactical nuclear weapon? So there’s no limit. Essentially, once the cat is out of the bag, the Second Amendment trumps all?”

Patterson responded yes, in his view, this is the Supreme Court’s position.

“If something is in common use, it can’t be unusually dangerous,” he said. He added, “It would not make any sense to the founders of this nation to say that as firearms technology develops, we’re going to deprive our militia of that.”

He was referring to the Second Amendment’s decree that “a well regulated militia” is “necessary to the security of a free state.” For decades, that language was interpreted as applying to military service.

In 2008, the Supreme Court ruled that the Second Amendment protects an individual’s right to bear arms that are not “dangerous and unusual.” And in 2022, the justices went further, saying that the right could only be restricted if there is historical evidence that the Constitution’s drafters would have accepted that limitation.

Under that standard, gun rights advocates who lost a challenge to Maryland’s assault weapons ban in 2017 are trying again. The 4th Circuit also reviewed a federal judge’s ruling in West Virginia that requiring serial numbers on guns are unconstitutional because similar marks did not exist on firearms in the 1700s. The full appellate court also heard arguments regarding a judicial decision that struck down Maryland’s handgun permitting process, which can take up to a month.

Wilkinson sided with the court’s more liberal wing in 2017, saying it was judicial overreach to bar states from choosing how to handle new types of firearms. On Wednesday, he voiced similar concerns as the judges pondered whether guns with obliterated serial numbers are ever used lawfully.

“Many of these questions that we are debating here might be a proper subject for legislative findings,” he said. “What I’m worried about is the role of the legislature … being supplanted by these lawsuits.”

But other Republican appointees argued that such concerns were moot after the Supreme Court’s 2022 ruling in New York State Rifle & Pistol Association v. Bruen.

“We ought to follow Bruen, whether we like it or not,” said Paul V. Niemeyer, who was appointed by President George H.W. Bush. “If we don’t like Bruen, we shouldn’t be on the court. We don’t have to like what the Supreme Court does, but we have to follow it.”

Wilkinson and Democratic appointees on the court countered that there was not enough clarity on how to evaluate what is “common” or “dangerous.” Judge Pamela A. Harris, an Obama appointee, asked “what day” would a state legislature know it had to repeal a prohibition because a particular weapon had become too popular.

“None of us are statisticians,” added Judge James Andrew Wynn, also an Obama appointee. Judge A. Marvin Quattlebaum, who was appointed by President Donald Trump, joined in pressing Patterson, the representative for the gun rights groups, to articulate “the contours of the right” to bear arms, suggesting that some limitation on what weapons are covered by the Second Amendment is different from regulating the weapons that are already covered.

In the two other cases, more judges of every ideological persuasion were skeptical of the challenges. Niemeyer doubted that Maryland’s entire handgun permitting law or the federal serial number requirement should be thrown out in the West Virginia case.

“Lawful is a prerequisite to owning a gun,” he noted (the Bruen decision covered only “law-abiding citizens”), and authorities can conduct background checks and impose product safety measures. “It seems to me that the person who obliterates” a serial number on a gun “doesn’t have any lawful purpose,” Niemeyer said.

But there was not unanimous agreement on the court. Judge Julius N. Richardson, a Trump appointee, compared Maryland’s permit process to “detain[ing] everybody in the room” because “somebody in here has a plot.” And he referred to a study from Boston to argue that guns with scratched-off markings were “relatively prevalent” and that most crimes are committed with guns that can be traced.

Public defender Lex A. Coleman, representing a man with a violent felony record convicted of possessing a gun with an obliterated serial number, agreed with that point. He said that through another client, he learned about a new firearm on the market that “looks just like a sawed-off shotgun” and is “selling like hot cakes.”