A group of Maryland residents - with the help of the National Rifle Association and other 2nd Amendment organizations - formally filed a petition to the United States Supreme Court in an attempt to defeat the state's assault weapon ban.
This year, the 4th Circuit Court of Appeals voted 10-4 in Kolbe v. Hogan
that the State of Maryland was within its rights to ban certain types of firearms that the legislature defined as an "assault weapons." The plaintiffs are now asking the Supreme Court to review the 4th Circuit's decision on Maryland's assault weapon ban.
The fundamental question posed by the NRA-backed lawsuit is whether Maryland can legally and constitutionally ban entire classes of firearms that are "in common use at the time." This language is important because it is directly drawn from the Supreme Court's 2008 case, District of Columbia v. Heller
. In that case, the Supreme Court ruled that the 2nd Amendment protects an individual right to own firearms for self-defense, especially if those firearms are "in common use at the time."
The plaintiffs argue that the AR-15 is, by the numbers, the most popular rifle in America. The rifle is the semi-automatic (one shot per pull of the trigger) version of the U.S. Military's M-16 or M4 assault rifles and it is estimated that at least five million Americans have an AR-15 in their gun safes. The lawsuit points to these statistics and asks how a type of rifle that is legally owned by so many Americans would not qualify as "in common use at the time."
Another aspect of the Supreme Court's Heller ruling that gun rights advocates point to is the Court's definition of the militia clause. The late-Justice Antonin Scalia penned the Heller opinion and wrote that the Second Amendment was written to ensure that Americans would be sufficiently trained and armed if ever called up into militia service. If a militia was ever organized, Americans would be expected to bring a privately owned firearm suitable for military service. While the AR-15 lacks some of the internal parts of its fully-automatic military clones, it accepts the same ammunition, magazines, and accessories, making it a perfect weapon for a civilian seeking to quickly integrate into a militia or National Guard force.
When the 4th Circuit issued its en banc ruling on Maryland's assault weapon ban, the judges ignored the militia aspect entirely and upheld the ban specifically because these types of weapons were suitable for military use. In the opinion, Circuit Judge King wrote that the court has "no power to extend Second Amendment protection" to "weapon[s] of war." The judge's argument was that because Justice Scalia wrote that states were allowed to ban "M-16 rifles and the like," then Maryland had that power to ban civilian semi-automatic versions of the gun.
The result is that under Federal law, able-bodied Maryland residents are legally expected to be able to show up to militia service proficient in a firearm suitable for militia service but they aren't allowed to own such a firearm under Maryland law.
The Heller case came about because the District of Columbia had a city-wide ban on civilian handgun ownership. The Supreme Court examined the facts and determined that this ban was unconstitutional because, in part, handguns are suitable for military and militia use. It took a Supreme Court ruling to codify that Americans have the right to buy and own handguns. By appealing their case, the plaintiffs in Kolbe v. Hogan hope to receive similar clarification from the Supreme Court on semi-automatic rifles.
However, their appeal will arrive at a Supreme Court seemingly unsympathetic to Second Amendment challenges. Earlier this year, the Justices turned down a case in California challenging that state's ban on both concealed and open carry of handguns. While Justices Clarence Thomas and Neil Gorsuch dissented and announced that they would have taken the case, the other seven Justices were less enthusiastic. Some have posited that the case was rejected because the Conservative wing of the court was unsure which side the aging Justice Anthony Kennedy would fall on. With Kennedy now actively warning clerk applicants that he is preparing to retire, Justices Gorsuch, Thomas, Alito, and Roberts may simply be waiting for President Trump to nominate another pro-gun judge before they take on an assault weapon ban case.
At this point, all anyone can do is wait. Supreme Court Chief Justice John Roberts is the Circuit Justice for the Fourth Circuit Court of Appeals. He will be the first to receive the petition and will have the ability to unilaterally act on it (unlikely) or put it on the calendar for consideration when the Supreme Court comes back into session this Fall.