Earlier this month, the U.S. Court of Appeals for the Fourth Circuit upheld Maryland’s ban on so-called assault weapons, a decision that could set the stage for a significant Second Amendment confrontation at the Supreme Court.
The case, Bianchi v. Brown, centers around Maryland residents who are challenging the constitutionality of a 2013 state law that broadly prohibits the purchase or possession of any firearm classified as an “assault weapon.”
The law defines “assault weapon” to include hundreds of specific models of semiautomatic rifles and any semiautomatic rifle that meets one of the following criteria: (1) a fixed magazine that holds more than ten rounds, (2) an overall length of less than twenty-nine inches, or (3) a detachable magazine coupled with at least two of these three features: a folding stock, a flash suppressor, or a grenade/flare launcher.
Although semiautomatic rifles aren’t entirely banned in Maryland, residents must purchase heavily modified, “featureless” versions of these guns. The plaintiffs contend that this restriction on owning nearly all of the nation’s most popular semiautomatic rifles violates the Second Amendment.
The Supreme Court has yet to clearly rule on whether the Second Amendment extends to semiautomatic rifles, but the Court’s broader Second Amendment precedents appear to support the plaintiffs’ case.
In the 2008 decision District of Columbia v. Heller, the Supreme Court invalidated Washington D.C.’s complete ban on handgun possession, affirming that the Second Amendment’s protections extend to “all instruments that constitute bearable arms,” including those not in existence at the time of the founding.
While the Court acknowledged that the right to bear arms is not unlimited, citing a historical tradition of restricting “dangerous and unusual weapons,” it also emphasized that handguns are “commonly possessed by law-abiding citizens for lawful purposes” and are the preferred arms for self-defense in American society.
More recently, in New York State Rifle & Pistol Ass’n v. Bruen (2022), the Supreme Court established that Second Amendment cases must be decided based on the text, history, and tradition of the Constitution, rather than on modern interest-balancing tests. The Bruen decision did not specifically address the types of arms protected under the Second Amendment, but it did clarify that any regulation impacting protected conduct must align with the nation’s historical tradition of firearms regulation.
Under the Bruen framework, the government must demonstrate a historical precedent for its modern regulations. It’s insufficient to show a loose resemblance to past laws; instead, the government must provide evidence of historical laws that closely align in both the burden they impose on the right to bear arms and the reasons for that burden. Moreover, this historical precedent must be more substantial than a few isolated instances from late in history.
In summary, based on the Supreme Court’s jurisprudence, Maryland would need to demonstrate a long-standing national tradition of not just banning civilian possession of semiautomatic rifles like the AR-15, but doing so because these weapons are uniquely dangerous and uncommon among law-abiding citizens for lawful purposes—a case it likely cannot make.
Semiautomatic rifles like the AR-15 are not recent innovations requiring complex analogies to older firearms categories. The first successful semiautomatic rifle emerged in the 1880s, and such rifles became commercially popular in the early 20th century. The distinguishing features of so-called “assault-style” semiautomatic rifles—such as pistol grips, collapsible stocks, and barrel shrouds—are relatively recent developments that do not significantly affect the weapon’s lethality, functionality, or concealment.
Yet, comprehensive bans on their civilian possession are a modern development. The Supreme Court’s decision on this issue could have significant implications for the future of gun rights in America.